MANAGEMENT AGREEMENT BETWEEN SEDGWICK COUNTY, KANSAS AND SMG

Dated as of August 1,2007

MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT (this "Agreement") dated as of the lS' day of August, 2007, is entered into by and between Sedgwick County, Kansas, a municipal corporation organized and existing pursuant to K.S.A. 19-101 (the "County" or the "Owner"), and SMG, a Pennsylvania general partnership, whose current address is 701 Market Street, 4th Floor, Philadelphia, PA, 19106 ("SMG"). BACKGROUND The County is (i) the owner and current operator and manager of the Kansas Coliseum Complex located in Sedgwick County, Kansas, currently consisting of the Britt Brown Arena (if the County elects to continue to use it as an event venue), three (3) Pavilion facilities housing an equestrian and livestock center and storage and utility buildings, and Wiedemann Park (collectively, "Existing Facility"), and (ii) the owner of, and is currently developing and constructing, a new arena with a seating capacity of 15,000 for basketball games and up to 17,000 for certain concerts to be located in the City of Wichita, Kansas ("New Facility") (the New Facility and Existing Facility are each individually and collectively (as the context may require) referred to as the "Facility"). SMG is engaged, among other things, in the business of providing pre-opening consulting services and management services, including operations and marketing services for public assembly facilities. The County desires to engage SMG, and SMG desires to accept such engagement, to provide pre-opening consulting services and management services for the Facility on the terms and conditions set forth herein. The County intends to work in mutual accord with SMG in order to ensure provision of high quality management services, thereby enhancing the use and enjoyment of the Facility. NOW, THEREFORE, in consideration of the mutual premises, covenants and agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:

1.

Definitions

For purposes of this Agreement, the following terms have the meanings referred to in this Section 1: "ADA" - the Americans with Disabilities Act, 42 U.S.C. Sections 12101-12213 as amended by the Civil Rights Act of 1991 (42 U.S.C. Section 1981(a)), as it now exists and as it may be amended in the future by statute or judicial interpretation. "Affiliate" - a Person that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, a specified Person.

For purposes of this definition, "control" means ownership of equity securities or other ownership interests which represent more than 40% of the voting power in the controlled Person. "Approved Budget" - any budget submitted by SMG, as approved in writing by the County pursuant to Section 5 hereof. "CERCLA" - the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act. "Capital Equipment" - any and all furniture, fixtures, machinery or equipment, either additional or replacement, having a per item original cost of $5,000 or more and an expected useful life of more than one year. "Capital Improvements" - any and all building additions, alterations, renovations, repairs or improvements that have an initial dollar cost of not less than $7,500 per project. Capital Improvements shall not include routine maintenance and repair projects which in the aggregate exceed $7,500. "Consulting Period" - the period commencing as of August 1,2007 and ending on the date which is immediately prior to the commencement of the Management Term for the New Facility (defined below). "Consulting Services" - as defined in Section 2.5(a) hereof. "Contract Administrator" -- the senior administrative official of the County as from time to time appointed by the County Manager, or such individual person as may from time to time be authorized in writing by such administrative official to act for himiher with respect to any or all matters pertaining to this Agreement. "County" - as defined in this first paragraph of this Agreement. "Event Expenses" - any and all expenses incurred or payments made by SMG in connection with the occurrence of events at the Facility, including but not limited to costs for event staffing including ushers, ticket takers, security and other event staff, and costs relating to setup and cleanup. "Existing Facility" - the more detailed description of each of the facilities comprising the Kansas Coliseum complex (i.e., Britt Brown Arena (if the County elects to continue to use it as an event venue), all Pavilion facilities housing an equestrian and livestock center and storage and utility buildings, and Wiedemann Park), as set forth on Exhibit "F" attached hereto. "Facility" - as defined in the first paragraph of the Background section of this Agreement. "Fiscal Year" - a one year period beginning January 1 and ending December 3 1.

"Laws" - all federal, state, local and municipal regulations, ordinances, statutes, rules, laws and constitutional provisions. "Losses" - any and all losses, liabilities, claims, damages and expenses (including reasonable attorneys' fees). "Management Term" - as defined in Section 3.2 hereof. "Net Operating LossIProfit" - with respect to a Fiscal Year, the excess, if any, of Operating Expenses for such Fiscal Year over Operating Revenues for such Fiscal Year, in the case of a loss, and the excess, if any, of Operating Revenues for such Fiscal Year over Operating Expenses for such Fiscal Year, in the case of a profit. "New Facility" - the new arena owned by the County to be located in the City of Wichita, Kansas (currently under construction and development) as more particularly described in Exhibit "F" hereto. "Operating Expenses" - any and all expenses and expenditures of whatever kind or nature incurred by SMG in promoting, operating, maintaining and managing each Facility, including, but not limited to: employee compensation and related expenses (e.g., base salaries, bonuses, severance and car allowances), employee benefits and related costs (e.g., relocation and other related expenses pursuant to SMG's relocation policy (a copy of which will be provided upon request), parking and other fringe benefits), supplies, material and parts costs, costs of any interns and independent contractors, advertising, marketing and public relations costs and commissions, janitorial and cleaning expenses, data processing costs, dues, subscriptions and membership costs, the costs of procuring, administering and maintaining the insurance referred to in Section 8 below, amounts expended to procure and maintain permits and licenses, charges, taxes, excises, penalties (excluding penalties incurred solely as a result of SMG's actions or , inactions and/or any breach by SMG of this Agreement) and fees, professional fees, printing and stationery costs, Event Expenses, postage and freight costs, bank services charges, equipment rental costs, computer equipment leases and line charges, copier/printer/facsimile equipment lease charges, repairs and maintenance costs (e.g., elevators and HVAC), security expenses, utility and telephone charges, travel and entertainment expenses in accordance with SMG's policies, the cost of employee uniforms, safety and medical expenses, exterminator and waste disposal costs, costs relating to the maintenance of signage inventory and systems, the cost of annual independent audits of the Facility, the cost of compliance with laws and regulations, costs incurred under agreements, commitments, licenses and contracts executed in SMG's own name as provided in Section 2.3(c) hereof, and reasonable attorneys' incurred by SMG in enforcing such agreements, commitments, licenses and contracts as provided in Section 2.3(h) hereof, all as determined in accordance with generally accepted accounting principles and recognized on a full accrual basis; provided that Operating Expenses shall not include (i) expenses or expenditures in connection with Capital Improvements and Capital Equipment purchases, (ii) the fees payable pursuant to Section 4.3 below, (iii) the cost of property taxes for the Facility and the cost of insurance premiums incurred by the County to purchase property and hazard insurance relating to the Facility and their respective premises for physical damage and insurance covering business interruption and extra expenses with regard to the operation of the Facility, (iv) any expenses associated with the naming rights sponsor for the Facility, including without limitation

the annual costs of servicing such naming rights sponsor and any commissions paid to Superlative or its replacement in connection with its efforts in securing such sponsor, and (v) any expenses relating to SMG personnel based in SMG's corporate headquarters in Philadelphia, Pennsylvania or its regional field locations (other than the reasonable costs of travel by such corporate or regional personnel in connection with SMG's management of the Facility, which costs shall be Operating Expenses). In addition, for purposes of (A) calculating Net Operating LossIProfit and SMG's fees and Net Operating Loss funding obligations hereunder and (B) identifying Operating Expenses which will be budgeted in the Approved Budget, Operating Expenses shall exclude all extraordinary expenses and all interest, income tax, depreciation and amortization expenses. "Operating Revenues" - any and all revenues of every kind or nature derived from owning, operating, managing or promoting the Facility, including, but not limited to: license, lease and concession fees and rentals, revenues from merchandise sales, advertising and sponsorship sales and renewals, event sponsorship revenues, equipment rentals, utility revenues, box office revenues, ticket surcharges (if any), ticket service fees, parking revenues received for parking at the Facility, food service and concession revenues (however, if such revenues are collected in the first instance by and retained by the concessionaire, the amount of such revenues owed by the concessionaire to the Facility shall be included as Operating Revenues), commissions or other revenues from decoration and set-up, security and other subcontractors (however, if such revenues are collected in the first instance by and retained by such subcontractors, the amount of such revenues owed by such contractors to the Facility shall be included as Operating Revenues), miscellaneous operating revenues, revenues generated from separate agreements with SMG Affiliates pertaining to the Facility, and interest revenues, all as determined in accordance with generally accepted accounting principles and recognized on a full accrual basis. For the sake of clarity, the parties acknowledge that revenues from the sale of tickets for events at the Facility are not Operating Revenues, but are instead revenues of the promoter and/or performer of each such event. To the extent that SMG collects such ticket sale revenue on behalf of such promoter andlor performer, such ticket sale revenue shall be the source of funds from which SMG collects the rental charges and other event reimbursements due by such promoter and/or performer for use of the Facility, which such charges and reimbursements are Operating Revenues hereunder. Notwithstanding the foregoing, revenues from the sale by the County of naming rights for the Facility shall be excluded from Operating Revenues hereunder, but certain elements from the sale of such rights will be credited to the calculation of Net Operating ProfitLoss as provided in Section 4.3 hereof. "Person" - any individual, general partnership, limited partnership, limited liability partnership, partnership, corporation, joint venture, trust, business trust, limited liability company, cooperative, or association, and the successors and assigns of any of the foregoing and, unless the context otherwise requires,-the singular shall include the plural, and the masculine gender shall include the feminine and the neuter, and vice versa. "Pre-existing Agreement" - each contract, license, agreement, option, lease and commitment existing as of the date of the commencement of the Management Term (i) for the Existing Facility that grants any Person any right (A) to license, use, occupy or rent all or any portion of the Existing Facility, or (B) to provide services to be used in the management, operation, use, possession, occupation, maintenance, promotion or marketing of all or any

portion of the Existing Facility, and that will be listed by the County on Exhibit "A" hereto at least thirty (30) days prior to the commencement of such Management Term and (ii) for the New Facility the County's agreement with The Superlative Group, Inc. ("Superlative"), a copy of which has been provided to SMG, and any sponsorship (including naming rights), advertising and premium seating agreement entered into by the County based upon Superlative's efforts under its agreement with the County that is or are listed by the County on Exhibit "A" hereto at least thirty (30) days p ~ i o r the commencement of the Management Term for the New Facility. to "Pre-Opening Budget" - as defined in Section 2.5(g) hereof. "Renewal Term" - the additional period for which this Agreement may be renewed in accordance with Section 3.2 hereof beyond the Management Term. " S M G - as defined in the first paragraph of this Agreement. "Transition Period" - the period of time that begins forty-five (45) days prior to the commencement of the Management Term for the Existing Facility and ends immediately prior to the commencement of such Management Term.

2.

Engagement of SMG; Scope of Services.
2.1 Engagement.

General Scope. The County hereby engages SMG to (i) provide the (a) Consulting Services during the Consulting Period, and (ii) maintain, promote, operate and manage the Facility during the Management Term and the Renewal Term, if any, upon the terms and conditions hereinafter set forth, and SMG hereby accepts such engagement. Manager of the Facility. Subject to the terms of this Agreement, SMG (b) shall be the sole and exclusive manager of the Facility responsible for maintaining, managing, operating and promoting the Facility during the Management Term and the Renewal Term, if any. In such capacity, SMG shall have exclusive authority over the day-to-day operation of the Facility and all activities therein; provided that SMG shall follow all policies and guidelines of the County hereafter established or modified by the County that the County notifies SMG in writing are applicable to the Facility (including without limitation any methodology pertaining to the allocation of any costs and expenses by the County to the Facility as permitted herein). (c) Independent Contractor. SMG's engagement hereunder is of a contractual nature. Both parties assert and believe that SMG is acting as an independent contractor in providing the services and performing the duties hereunder. SMG is at all times acting as an independent contractor and not as an agent of the County. As an independent contractor, SMG and employees of SMG will not be within the protection or coverage of the County's worker compensation insurance, nor shall SMG, and employees of SMG, be entitled to any current or future benefits provided to employees of the County. Further, the County shall not be responsible for withholding social security, federal, and/or state income tax, or unemployment compensation from payments made by the County to SMG. SMG's performance of those services required hereunder shall be in SMG's own name and subject to the limitations of this Agreement.

Approval of the County. To the extent that the approval of the County is (d) required under the terms of this Agreement, the written approval of the Contract Administrator shall constitute the approval of the County, except to the extent the approval of another party is expressly required by the terms of this Agreement. 2.2 Scope of Services - Generally; Standard of Care

SMG shall perform and furnish such management services and systems as are appropriate or necessary to maintain, operate, manage and promote the Facility during the Management Term and the Renewal Term, if any, in a manner consistent with SMG's policies and procedures and the operations of other similar first-class facilities. In providing services under this Agreement, SMG shall maintain the standard of care, diligence and professional competency as is customary in the industry. SMG shall contractually require all of its consultants or contractors to provide services at the same standard of care, skill, diligence and professional competence required of SMG. SMG shall exercise all reasonable and customary precaution to prevent any harm or loss to all persons or property related to this Agreement. 2.3 Specific Services.

Without limiting the generality of the foregoing, SMG shall perform the following services, which SMG has the sole right and authority to perform without (except as otherwise expressly noted in this Agreement) any prior approval by the County: employ (subject to Section 7.2), supervise and direct employees and (a) personnel consistent with the provisions of this Agreement; administer relationships with all subcontractors, concessionaires and all (b) other contracting parties to the Pre-Existing Agreements, assume responsibility for any and all negotiations, renewals and extensions (to the extent SMG deems any of the foregoing to be necessary or desirable) relating to such Pre-Existing Agreements, and enforce the Pre-Existing Agreements; negotiate, execute in SMGYs own name, deliver and administer any and all (c) licenses, occupancy agreements, rental agreements, booking commitments, advertising agreements, concession agreements, supplier agreements, service contracts (including, without limitation, contracts for cleaning, decorating and set-up, snow removal, general maintenance and maintenance and inspection of HVAC systems, elevators, stage equipment, fire control panel and other safety equipment, staffing and personnel needs, including guards and ushers, and other services which are necessary or appropriate) and all other contracts and agreements in connection with the maintenance, management, promotion and operation of the Facility, provided that (i) if any such license, agreement, commitment or contract other than those involving the license, lease or rental of the Facility in the ordinary course has a term that extends beyond the remaining Management Term or, if this Agreement has been renewed, the Renewal Term, such license, agreement, commitment or contract must prior thereto be approved in writing by the County (which approval shall be at the County's sole discretion, not to be

unreasonably withheld), and (ii) SMG and the County will have joint approval rights (which approval right shall be at each party's sole discretion, not to be unreasonably withheld) for all major revenue streams that can impact the profitability of any Facility, including ticketing, sponsorships, food and beverage, and tenant leases with terms of one year or greater. In connection with any licenses, agreements, commitments or contracts for the Facility, SMG will use best efforts to include in such documents (i) the right of SMG to assign all of its rights and obligations under such licenses, agreements, commitments and contracts to the County or to any successor management company retained by the County upon the expiration or termination of this Agreement, and (ii) the right of the County to assign its rights and obligations under such documents to any successor management company retained by the County thereafter. Upon the expiration or termination of this Agreement, an assignment and assumption by and between SMG and the County or a successor management company retained by the County shall occur as provided in Section 12.3(iv) hereof; maintain the Facility in the condition received, reasonable wear and tear (d) excepted, and in a clean, safe and sanitary manner; provided that the County shall be responsible for funding all Capital Improvements, Capital Equipment purchases and reasonable expenses related thereto as provided in Section 5.8; rent, lease or purchase all equipment and maintenance supplies necessary (e) or appropriate for the operation and maintenance of the Facility, provided that the County shall be responsible for funding all Capital Improvements, Capital Equipment purchases and reasonable expenses related thereto pursuant to Section 5.8; establish and adjust prices, rates and rate schedules for the aforesaid licenses, agreements and contracts and any other commitments relating to the Facility to be negotiated by SMG in the course of its maintenance, management, operation and promotion of the Facility, including without limitation the establishment of facility fees on the sales of tickets, for events at the New Facility without restriction by the County. In determining such prices and rate schedules, SMG shall evaluate comparable charges for similar goods and services at similar andlor competing facilities and shall consult with the Contract Administrator about any adjustments to the rate schedules at the Facility to be made by SMG; pay, when due, all Operating Expenses from accounts established pursuant (g) to Sections 5.6 and 5.7 of this Agreement; after consultation with the Sedgwick County Counselor or his or her (h) designee, institute, at the reasonable expense of SMG and with counsel mutually agreed upon by SMG and the Sedgwick County Counselor, such legal actions or proceedings as SMG shall deem necessary or appropriate in connection with the operation of the Facility, including, without limitation, to collect charges, rents or other revenues due or to cancel, terminate or sue for damages under, any license, use, advertisement or concession agreement for the breach thereof or default thereunder by any licensee, user, advertiser, or concessionaire at the Facility, with the litigation costs and expenses therefor, including reasonable attorneys' fees, to be considered Operating Expenses;

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maintain a master set of all booking records and schedules for each (i) Facility. In connection with its booking activities hereunder, SMG shall use its relationship with Live Nation for this Facility to leverage the resources of both SMG and Live Nation to bring events to the Facility; provide day-to-day administrative services in support of its management (j) activities pursuant to the Approved Budget and annual plans described herein, including, but not limited to, the acquisition of services, equipment, supplies and facilities; internal budgeting and accounting; maintenance and property management; personnel management; record-keeping; collections and billing; and similar services. SMG shall keep separate records, budgets and accounts for each Facility. engage in such advertising, solicitation, and promotional activities as (k) SMG deems necessary or appropriate to develop the potential of the Facility and the cultivation of broad community support (including without limitation selling advertising inventory and securing product rights for the Facility). SMG shall work with the Greater Wichita Convention & Visitors Bureau to market the Facility. Additionally, SMG shall fully comply with and fulfill all advertising, sponsorship and premium seating contracts executed by the County (and/or its agent, Superlative) prior to the New Facility's grand opening (collectively, the "Initial Sponsorship Contracts"). With respect to the Initial Sponsorship Contracts, all payments owed to the County under such contracts shall be deemed to be Operating Revenues hereunder and to the extent that SMG is requested to pay any commissions or other amounts due under such contracts prior the New Facility's grand opening, the parties will mutually agree upon a mechanism for SMG to collect all sums paid under such contract(s) prior to such opening and to pay such commissions and other amounts thereunder prior to such opening. Moreover, SMG will be entitled to invoice, collect and count as Operating Revenues all payments owed to the County pursuant to all advertising, sponsorship and premium seating contracts executed by the County (and/or its agent, Superlative) after the New Facility's grand opening. SMG will be responsible for all renewals or replacements of advertising sponsorship and premium seating deals upon expiration of the initial contract period thereunder. SMG will not impose any charge or additional cost to the Facility for such renewal and replacement services. Notwithstanding the foregoing, the County will retain the sole authority and responsibility to narr,e any Facility or their respective components and will be entitled to invoice, collect and exclude from Operating Revenues all payments owed to the County pursuant to such naming rights contracts (and all payments due thereunder, including any commissions due thereunder) shall be excluded from Operating Expenses hereunder), but certain elements from the sale of such rights will be credited to the calculation of Net Operating Profit/Loss as provided in Section 4.3 hereof. In connection with its activities under this Agreement, including without limitation advertising relating to the Facility, SMG shall be permitted to use the terms "Kansas Coliseum", "Sedgwick County Arena", or such other names and logos for such facilities (or for any building comprising the Existing Facility or the New Facility) approved by the County; maintain, manage and operate the Facility and its premises in compliance (1) with all Laws, including, but not limited to, the ADA, as provided in Section 11.2 hereof; and (m) exclusively provide food and beverage and catering services and merchandising services for the Facility.

2.4

Access to the Facility.

Representatives of the Owner shall have the right to enter all portions of the Facility at any time and for any proper purpose whatsoever, including to inspect same, to observe the performance of SMG of its obligations under this Agreement, to install, remove, adjust, repair, replace or otherwise handle any equipment, utility lines, or other matters in, on, or about the premises, or to do any act or thing which the Owner may be obligated or have the right to do under this Agreement or otherwise. In connection with the exercise of such rights, the Owner will endeavor to provide (but is not obligated to provide) advance notice to SMG for security purposes and to minimize any interference with or disruption of SMG's work under this Agreement. Nothing contained in this Section (i) is intended or shall be construed to limit any other rights of the Owner under this Agreement nor (ii) shall impose or be construed to impose upon the Owner any independent obligation to construct or maintain or make repairs, replacements, alterations, additions or improvements or create any independent liability for any failure to do so.

2.5

Consulting Services.

During the Consulting Period, SMG will provide to the County with (a) respect to the New Facility (i) the pre-opening operational consulting and management services described in Exhibit "B" hereto, (ii) the pre-opening design, development and construction consulting services described in Exhibit "C" hereto and (iii) as requested by the County, the consulting services relating to furniture, fixtures and equipment described in Exhibit "D" hereto (collectively, the "Consulting Services"). Attached hereto as Exhibit " G is a time line of the Consulting Services prepared by SMG on June 4,2007, which reflects as of such date the anticipated time frames for the performance of such services. The parties acknowledge that as in any construction project, such time line is subject to change based upon the overall progress of the project. In rendering the Consulting Services, SMG will work with representatives, (b) consultants and agents of the County as set forth in Exhibits "B", "C" and "D" hereto (including, without limitation, the architectural and engineering firm(s) selected by the County for the design and construction of the New Facility). SMC will make appropriate SMG personnel available to such finn(s) as necessary from time to time to consult with and provide periodic reports regarding the performance of the Consulting Services. In rendering the Consulting Services, SMG expects to utilize its existing (c) personnel; it is acknowledged that (unless SMG determines otherwise) no SMG personnel will be located full-time at the project site; SMG personnel will from time to time visit the site and participate in meetings with other agents, representatives and consultants of the County as necessary or appropriate in connection with the performance of the Consulting Services. As specified in Exhibit "B" hereto, SMG will, among other things, be (d) authorized to execute in its own name booking commitments, tenanther agreements and licenses for use of the New Facility following its opening to the public.

The County acknowledges that SMG is not an architect, an engineer, or a (e) legal advisor, and its consulting services provided under this Agreement with respect to the Facility are based on its operational knowledge and should not be construed as a representation of architectural or engineering practices or a legal representation or interpretation of any Law, including, but not limited to, the ADA. Neither the County nor any of its respective agents, consultants or representatives will rely upon SMG as having architectural, engineering, or legal expertise. Accordingly, notwithstanding anything to the contrary contained herein, SMG shall have no liability to the County with respect to architectural, engineering, or legal matters relating to the foregoing. SMG personnel assigned by SMG .to.performthe Consulting Services (f) shall be available as necessary to perform the Consulting Services. SMG has submitted to the County, for the County's approval, a pre(g) opening operating budget (the "Pre-Opening Budget"), a current draft of which is attached as Exhibit " E . The County shall review such proposed Pre-Opening Budget and shall submit any comments to SMG as promptly as possible so that the Pre-Opening Budget can be finalized, approved and funded by the County as soon as practical. SMG shall be entitled from time to time to request that the Pre-Opening Budget be revised and updated to reflect changed circumstances, provided that any revised Pre-Opening Budget shall require the prior written approval of the County, which approval shall be at the County's sole discretion, not to be unreasonably withheld. During the Consulting Period, SMG's aggregate expenditures (when taken as a whole relative to the total Pre-Opening Budget and not on a per line item basis) shall not exceed the aggregate Pre-Opening Budget, without the prior written consent of the County. SMG shall be solely responsible for all expenditures that exceed the Pre-Opening Budget or any revision thereto approved by the County, unless the County's prior written consent has been obtained in connection therewith. Notwithstanding the foregoing, (i) SMG is not responsible for . changes in the expenditures during the Consulting Period caused by circumstances beyond SMG's reasonable control (such as, caused by delays in the construction project) and (ii) the PreOpening Budget does not include, and SMG shall not be responsible for, the costs and expenses associated with (A) the maintenance and operation of the New Facility prior to the commencement of the Management Term for such facility and (B) the grand opening event at the New Facility. During the Consulting Period, SMG will invoice the County on a monthly basis for its expenses incurred during such period in accordance with the Pre-Operating Budget, and the County will pay such invoices within thirty (30) days after receipt.

Confidentialitv/Nondisclosure. The parties hereto agree that they shall (a) keep secret and confidential any and all proprietary information of the other party conspicuously marked as confidential or proprietary or otherwise indicating in writing as such, and each shall only use such information of the other party for the performance of its respective obligations under this Agreement. A party will make such designation only as to that information that it in good faith believes is confidential and/or proprietary. Neither party shall divulge any such information, in whole or in part, to any third party without the prior written consent of the other party; provided, however, such information may be disclosed to the party's attorneys on a need to know basis or as may be required by applicable law, including the Kansas Open Records Act,

K.S.A. 45-215, et seq. (the "Public Records Act"), or as directed by order of a court of competent jurisdiction. The parties shall provide notice to the other party of any known violations of this Section 2.6. Further, the parties shall endeavor in good faith to provide notice to the other party prior to any disclosure required by applicable law or order of a court of competent jurisdiction (it being understood such notice may not be possible before disclosure is required). The restrictions upon confidentiality and use of the confidential information of each party set forth in this Section 2.6 do not apply to information which the other party can demonstrate was publicly available or lawfully in its possession at the time of its disclosure to it by the other party. To the extent that SMG has any confidential or proprietary (i) information that it reasonably believes is a privileged trade secret andlor should not be disclosed to a third party to protect the privileged, confidential and/or proprietary nature of such information, and upon the approval of the Contract Administrator, which shall not be unreasonably withheld, SMG shall not be required hereunder to deliver such information to the County, but instead will afford the County an opportunity to review such information at the Facility during reasonable business hours and upon reasonable advance notice, or on terns mutually agreed upon by the parties in order to protect the privileged, confidential and/or proprietary nature of such information. Specific Performance. Each party agrees that the provisions of this (b) Section 2.6 are reasonable and necessary to protect the interests of the other disclosing party and that the disclosing party's remedies of law for a breach of any of the provisions of this Section 2.6 will be inadequate and that, in connection with any such breach, the disclosing party will be entitled, in addition to any other remedies (whether at law or in equity), to temporary and permanent injunctive relief without the necessity of proving actual damage or immediate or irreparable harm, or of the posting of a bond. Notwithstanding the foregoing, if a court of competent jurisdiction shall determine any of the provisions of this Section 2.6 to be unreasonable, the disclosing party agrees to a reaffirmation of such provisions by such court to any limits which such court finds to be reasonable and the other party will not assert that such provision shall be eliminated in its entirety by such court.

3.

Term and Renewal.
3.1 Transition Period.

During the Transition Period, SMG will provide consulting and transition services to the County with respect to the Existing Facility and will work to effect an orderly transition of the management of the Existing Facility from the County to SMG. 3.2 Management Term and Renewal Term.

The Management Term for the Existing Facility shall commence on the (a) earlier of (i) January 1,2009 or (ii) such date as the County designates to SMG on at least ninety (90) days prior written notice to SMG and shall end at the end of the Management Term for the New Facility described in Section 3.2(b) below, unless earlier terminated pursuant to the provisions of this Agreement.

The Management Term for the New Facility shall commence when it (b) hosts its first event that is open to the public (anticipated to be October 1, 2009) and will continue through December 3 1" of the fifth (sth)full year thereafter, unless earlier terminated pursuant to the provisions of this Agreement. The parties will confirm in writing the commencement date of the Management Term promptly after its commencement. The parties may, in their sole discretion, mutually agree to extend the term (c) of this Agreement for an additional five-year period commencing at the end of the Management Term for the New Facility set forth in Section 3.2(b) above. Notwithstanding the foregoing, if the County receives more than One Million Seven Hundred Thousand Dollars ($1,700,000) in the aggregate during the New Facility's Management Term pursuant to Section 4.3 hereof, then this Agreement shall automatically renew for such additional five (5) year period.

4.

SMG's Compensation.
4.1 Consulting Period.

As total compensation to SMG for its services during the Consulting Period, the County shall (i) pay SMG the fixed fees described below, pro rated with respect to partial months during the Consulting Period, and (ii) reimburse SMG for out-of-pocket expenses in accordance with Section 2.5(g) hereof. The monthly fixed fees set forth below shall be payable prior to the end of each month in which they are due during the Consulting Period. From the beginning of the Consulting Period through December 3 1,2007, (a) Five Thousand Five Hundred Dollars ($5,500.00) per month. In addition, in consideration of the Consulting Services provided by SMG from May 1,2007 through the date hereof (the "Prior Services"), SMG shall be entitled to be paid $5,500.00 for each month (or part thereof) during such period and SMG shall invoice the County for the Prior Services following the date hereof. From January 1,2008 through December 3 1,2008, Seven Thousand (b) Dollars ($7,000.00) per month. From January 1,2009 to the end of the Consulting Period, Eight Thousand (c) Dollars ($8,000.00) per month. 4.2 Fees With Respect to the Existing Facility.

As compensation to SMG for providing the services herein specified for the Existing Facility during the Management Term and any Renewal Term, the County shall pay SMG during the Management Term and the Renewal Term, if any, an annual fee equal to five s percent (5%) of the Operating ~ e v e n u e of the Existing Facility. Such fee shall be payable by the twenty-fifth (25th) day of each month immediately following each month during the Management Term and the Renewal Term, if any, and SMG shall be entitled to draw such amounts from the account for the Existing Facility described in Section 5.6. All Net Operating Profit from the operation of the Existing Facility shall be remitted to the County and the County shall be responsible for any Net Operating Losses with respect to the Existing Facility; provided, however, the County shall have no obligation to provide funds for the payment of Operating

Expenses incurred or committed for in excess of funds that have been budgeted and appropriated for such purpose for the Existing Facility, as provided in Section 5.2. 4.3 Fees With Respect to the New Facility.

With respect to the operation of the New Facility during the Management (a) Term and the Renewal Term, if any, SMG will be solely responsible for any Net Operating Losses incurred at the New Facility in any such Fiscal Year as provided herein. As compensation to SMG for providing the services herein specified for the New Facility during the Management Term and any Renewal Term, during each such Fiscal Year (or portion thereof) SMG shall be entitled to the compensation described in subsections (ii) and (provided there is sufficient Net Operating Profit) (v) below and the Net Operating Profit in each such Fiscal Year (or portion thereof) shall be distributed to the parties in the following order of priority: First, to the extent that SMG has funded any Net Operating Losses (i) at the New Facility in any prior Fiscal Years as provided herein, Net Operating Profits shall be distributed to SMG until SMG has fully recouped such funded losses. Second, the next (or first, if there is no distribution under (ii) subsection (i) above) $450,000.00 of Net Operating Profit shall be retained by SMG. (iii) retained by the County. Third, the next $450,000.00 of Net Operating Profit shall be

Fourth, to the extent that the County expends funds to pay for (iv) Capital Improvements andlor Capital Equipment purchases pursuant to Section 5.8 hereof in any prior Fiscal Year in excess of Two Hundred Fifty Thousand Dollars ($250,000.00), Net Operating Profits shall be next distributed to the County to cover the amounts in excess of $250,000.00 spent by the County on such improvements and equipment purchases. Notwithstanding anything to the contrary contained in this Agreement, the following items shall not count as Capital Improvements andlor Capital Equipment purchases for purposes of determining amounts expended by the County for which it may receive reimbursement pursuant to this subsection (iv): (A) any structural elements (e.g., the roof to the New Facility) andlor any major systems servicing the New Facility (e.g., HVAC and electrical), unless the cause for such expenditure is directly due to SMG's breach of its obligations under this Agreement, (B) expenditures that are covered under applicable manufacturer's warranties for any such item, except to the extent that recovery under such manufacturer's warranty is adversely affected by SMG's breach of its obligations under this Agreement, and/or (C) any such items that were originally included in the capital budget for the construction of the New Facility, but were not purchased in connection with the completion of the New Facility. Any Net Operating Profit in excess of the amounts covered in (v) subsections (i) through (iv) above shall be allocated sixty percent (60%) to the County and forty percent (40%) to SMG. To the extent that policies or guidelines hereafter established or modified (b) by the County as described in Section 2.l(b) hereof adversely affect revenues or expenses at the

New Facility, then and in that event, the fee formula set forth in this Section 4.3 shall be appropriately adjusted so that it reflects the additional costs or reduced revenues resulting from such established or modified policies or guidelines. The parties acknowledge that (i) in connection with the sale by or on (c) behalf of the County of naming rights to the New Facility, the rights granted to such naming rights sponsor may include rights beyond exterior signage on the building, such as interior signage at the New Facility and/or messaging rights on the New Facility's scoreboard, use of a suite at the New Facility and other advertising inventory at the New Facility (collectively, the "NR Sponsor's Other Rights"), and (ii) if such naming rights sponsor is granted NR Sponsor's Other Rights, the value of'such rights will be credited in the calculation of Net Operating Profit/Loss for purposes of this Section 4.3 and the application of its provisions. The value of such rights will be based upon the average rates charged to other sponsors/purchasers of such rights at the New Facility during the applicable Fiscal Year for comparable advertising inventory or rights. The above compensation and Net Operating Loss funding responsibilities (d) are based on the following facts: There not being a material difference between the actual design (i) components of the New Facility and the description of the New Facility contained in Exhibit "F" attached hereto, which difference materially adversely affects the Operating Revenues or Operating Expenses of the New Facility; There not being in either Sedgwick County, Kansas or Sumner (ii) County, Kansas (A) a casino performance venue with a seating capacity of 2,500 or more or (B) an indoor public assembly facility with a seating capacity of 5,000 or more, in either case that materially adversely affects the Operating Revenues of the New Facility. For sake of clarity, the parties agree that the indoor facility that is currently being planned by a private developer in the Park City, Kansas area with an expected seating capacity of 5,000 is not considered to be covered by clause (B) above; (iii) There not being any material adverse change in any of those major assumptions contained in SMG's pro forma operating budget that are listed on Exhibit "H" attached hereto, which changes are outside of SMG's reasonable control; and There not being a material increase of fifty percent (50%) or (iv) greater in the total annual cost to insure the Facility as required by this Agreement from the previous total annual cost for such insurance, outside of SMG's reasonable control. If there is a change in any of the facts identified in (i), (ii), (iii) or (iv) above, the County and SMG will work together for sixty (60) days after notice by SMG of such change, to make the necessary adjustments to the above compensation formula and/or the Net Operating Loss funding obligation. If the Contract Administrator and SMG are able to reach an agreement on such necessary adjustments, the Contract Administrator will work promptly to obtain the approval of the County Commissioners to such adjustments, if such approval is needed; provided that such approval is obtained within sixty (60) days following the date of such agreement

between the Contract Administrator and SMG. Notwithstanding such efforts, if the County and SMG are unable to agree upon such necessary adjustments within such initial sixty day period or if the County Commissioners' approval of such agreement is not obtained in the other sixty day time period described above, SMG may elect to terminate this Agreement by giving notice to the County within fifteen (15) days after the expiration of the applicable sixty (60) day period. Such notice shall provide that such termination shall be effective within thirty (30) days after the giving of such notice. If SMG fails to give such notice within such fifteen day period, then this Agreement shall continue in effect without adjustment for such change in facts. Payment. The payment of the amounts to SMG and the County as (e) provided in this Section 4.'3 shall be made contemporaneous with the delivery to the County of the audited annual financial statements described in Section 6.1 hereof for the New Facility for each Fiscal Year hereunder, SMG shall include with such financial statements a calculation of the amounts due to the parties pursuant to Section 4.3 above. The amounts due to SMG and the County under Section 4.3 shall be disbursed to each party, as the case may be, within thirty (30) days after the delivery of the above-described documents and information.

5.

Funding; Budget; Bank Accounts.
5.1 Operating Funds.

Subject to Section 5.2, following the approval of the annual operating budget for a Fiscal Year for the Existing Facility (including, without limitation, any annual operating budget applicable to the first Fiscal Year during the term hereof), to the extent that Operating Revenues for the Existing Facility during a calendar quarter period are insufficient, or expected to be for insufficient, to cover oPerating~xpenses the Existing Facility ("Cash Flow Shortfall") for such period, the County shall advance funds to SMG as follows. Thirty (30) days prior to the beginning of each calendar quarter during the Management Term and any Renewal Term, SMG, will submit to the County an invoice for the projected Cash Flow Shortfall for such quarter (which is offset by any cash flow surplus estimated by SMG for the then current calendar quarter, which estimate takes into account any such surplus for the first two months of such quarter and SMG's reasonable estimate of any cash flow surplus for-thelast month of such quarter), and the County will transfer such funds to SMG within five (5) business days after the start of such calendar quarter. Such funds shall be deposited by SMG in the operating or payroll account(s) established pursuant to Section 5.6 and used to pay Operating Expenses. 5.2 Non-Funding.

The County shall have no obligation to provide funds for the payment of Operating Expenses incurred or committed for in excess of the funds that have been budgeted and appropriated for such purpose for the Existing Facility. 5.3 Annual Budget.

As part of the annual plan described in Section 6.2 herein, on or before (a) ninety (90) days prior to the end of each Fiscal Year during the Management Term and Renewal Term, if any, SMG will prepare separate proposed annual operating budgets for the next Fiscal

Year with respect to the Existing Facility and the New Facility to meet the scope of services and objectives under this Agreement. For the Existing Facility, the initial proposed annual operating budget shall be delivered to the County sixty (60) days prior to January 1,2009, or thirty (30) days after notice from the County as provided in Section 3.2(a), depending on the commencement date of the Management Term for the Existing Facility. Each such budget shall contain appropriate line items for revenues and expenses and the projected Net Operating Profit or Loss. The annual budgets referred to in subsection (a) above pertaining to the (b) Existing Facility shall be reviewed and are subject to adjustment and written approval by the County. On or before thir'ty (30) days prior to the end of each Fiscal Year (or thirty (30) days after the County's receipt of the initial annual budget for the Existing Facility), the County shall notify SMG of any adjustments to the applicable annual operating budget for the Existing Facility for the succeeding Fiscal Year proposed by SMG and with such adjustments, if any, as are required for approval by the County on or before thirty (30) days prior to the end of each Fiscal Year, such budget shall be the Approved Budget for the following Fiscal Year. Although SMG shall provide the County with an annual budget for the New Facility, the County's approval of such budget is not required. Notwithstanding the foregoing, if any annual operating budget as proposed by SMG for the Existing Facility is adjusted by the County in a manner which, in SMG's judgment, could materially interfere, impede or impair the ability of SMG to manage, operate or promote the Existing Facility, SMG shall have the right, with one hundred eighty (180) days prior written notice to the County, to terminate this Agreement pursuant to Section 12.2 (with the effect set forth in Section 12.3); provided, however, that (i) in no event may SMG terminate this Agreement pursuant to this section if the adjustment required by the County in the budget for the Existing Facility results in a budgeted Net Operating Profit or Loss that is less than five percent (5%) change from the budgeted Net Operating Profit or Loss in the previous final annual Approved Budget for the Existing Facility, and (ii) if such approved annual operating budget departs from the budget proposed by SMG, SMG shall not be construed to have breached its obligations under this Agreement with respect to the Existing Facility if the alleged breach has been caused by the limitations in the Fiscal Year's budget.
5.4

Budget Modifications Initiated by SMG.

SMG may submit to the Contract Administrator at any time prior to the close of a Fiscal Year a supplemental or revised annual operating budget for such Fiscal Year with respect to the Existing Facility. Upon the written approval of the County of such supplemental or revised budget, the Approved Budget for such Fiscal Year for such facility shall be deemed amended to incorporate such supplemental or revised budget. The Approved Budget for the Existing Facility may only be amended as set forth in Section 5.5 below or in the preceding sentence.

5.5

Budget Modifications Initiated by the County.

In the event that it appears reasonably likely, in any year during the Management Term and Renewal Term, if any, that the actual Net Operating LossProfit for such Fiscal Year with respect to the Existing Facility will be, respectively, larger or smaller than projected in the annual operating budget for such Fiscal Year, SMG shall notify the County in writing of such

likelihood as soon as it becomes evident and thereafter submit to the County for approval a plan for reduction of Operating Expenses to a level consistent with the budgeted Net Operating LossIProfit amount for such Facility. SMG shall forthwith comply with any such expense reduction approved by the County (as may be adjusted by the County) and the approved budget for such Fiscal Year for such Facility shall be modified accordingly, provided that if the annual operating budget is modified in a manner which, in SMG's judgment, could materially interfere, impede or impair the ability of SMG to manage, operate or promote the Existing Facility, SMG shall have the right, with one hundred eighty (180) days prior written notice to the County, to terminate this Agreement pursuant to Section 12.2 (with the effect set forth in Section 12.3) and provided further that SMG shall not be construed to have breached its obligations under this Agreement with respect to such Facility if such alleged breach has been caused by the limitations in the Fiscal Year's budget.

5.6

Receipts and Disbursements.

With respect to each of the Existing Facility and the New Facility, SMG shall establish and maintain separate bank accounts in one or more depositories designated by the County for the promotion, operation and management of the Existing Facility and the New Facility, respectively. The bank accounts shall be in the name of SMG and with signature authority on each bank account in those employees of SMG as SMG shall determine. All revenues collected by SMG from the operation of each respective Facility shall be deposited into such bank account(s) for that Facility and Operating Expenses for each respective Facility shall be paid by SMG from the bank account(s) for that Facility. All revenues collected by SMG arising from operation of each Facility, including revenues from box office sales, facility or equipment rentals, utility rental agreements, food and beverage concessions, or any other source, are the sole property of the County, held in trust by SMG for the County for application as provided herein. Any amounts remaining in such bank accounts upon termination of this Agreement for any reason, after payment of all outstanding Operating Expenses and in the case of the New Facility, also after payment of all amounts as provided in Section 4.3 hereof, shall be promptly paid by SMG to the County. Funds attributable to the Existing Facility shall not be commingled with funds attributable to the New Facility, nor shall funds attributable to either Facility be used to pay for the Operating Expenses of the other Facility, unless otherwise directed in writing by the County.

5.7

Ticket Sales Revenues.

With respect to each of the Existing Facility and the New Facility, SMG shall hold in a separate interest-bearing account in a banking institution depository in the locale in which each Facility is located any ticket sale revenues which it receives with respect to an event to be held at each Facility pending the completion of the event. Such monies are to be held for the protection of ticket purchasers, the County and SMG, and to provide a source of funds, as required for such payments to performers and promoters and for such payments of Event Expenses and other Operating Expenses for each Facility in connection with the presentation of events as may be required to be paid contemporaneously with the event. Within ten (10) business days following the satisfactory completion of an event, SMG shall pay from the ticket account all amounts due to performers and promoters and Event Expenses, and thereafter deposit into the operating account established pursuant to Section 5.6 above for the Facility in which the

event occurred the amount in such ticket account and shall pay from the operating account for such Facility Operating Expenses and such other amounts that are due. Interest which accrues on amounts deposited in the operating accounts referred to in Section 5.6 and the ticket accounts referred to above shall be considered Operating Revenues for each Facility. 5.8 Capital Improvements; Capital Equipment.

With respect to each of the Existing Facility and the New Facility, the obligation to pay for Capital Improvements and Capital Equipment purchases shall remain with the County and will not be considered Operating Expenses. The annual plan submitted pursuant to Section 6.2 for each such Facility shall include SMG's recommendation for Capital Improvements and Capital Equipment purchases to be accomplished during the year and shall be accompanied by an estimate of the cost of all such items and projects and a request that the County budget funds therefor. The County shall retain the discretion to determine whether and to what level to fund Capital Improvements and Capital Equipment purchases to each such Facility, except that with respect to the New Facility, SMG and the County shall mutually agree upon the Capital Improvements and Capital Equipment purchases to be funded by the County in any Fiscal Year during the Management Term and any Renewal Term for the New Facility (which agreement shall be at each party's sole discretion, not to be unreasonably withheld). If requested by the County, SMG, or others engaged on its behalf, shall perform, direct and supervise Capital Improvements and Capital Equipment purchases which are authorized in writing by the County or included in any annual plan approved by the County pursuant to Section 6.2. Any reasonable expenses incurred by SMG in performing, directing and supervising Capital Improvements and Capital Equipment purchases shall be billed by SMG to the County and paid by the County within thirty (30) days thereafter.

5.9

Limitation of SMG Liability.

SMG shall have no obligation to fund any cost, expense or liability with respect to the performance of Consulting Services hereunder or the maintenance, operation, management or promotion of the Facility except for SMG's: obligations to fund Net Operating Losses at the New Facility as provided (i) in Section 4.3 hereof; (ii) (iii) express indemnification undertakings in Section S.l(a); express reimbursement undertakings in Section 6.1 (b);

obligations to fund Operating Expenses incurred or committed for in (iv) excess of the funds that have been budgeted for such purpose for the Existing Facility in Section 5.2(a); obligations to fund expenditures that exceed the Pre-Opening Budget or (v) any revisions thereto approved by the County as provided in Section 2.5(g); and obligations to provide the initial operating funds for the New Facility upon (vi) commencement of the Management Term for the New Facility, if necessary.

Notwithstanding anything to the contrary set forth in this Agreement, the County recognizes and agrees that performance by SMG of its responsibilities under this Agreement with respect to the Existing Facility is in all respects subject to and conditioned upon the timely provision of funds to SMG for such purposes as hereinafter provided. 5.10 Funds for Emergency Repairs.

SMG shall have the right to act, with the consent of the County, in situations which SMG reasonably determines to be an emergency with respect to the safety, welfare and protection of the general public, including spending and committing funds held in the operating account(s) of each ~acility, even if such expenses are not budgeted; provided, however, (i) with respect to the Existing Facility, SMG shall have no obligation under any circumstance to spend or commit funds other than funds then available in the Existing Facility account(s) for any such purpose, and (ii) with respect to the New Facility, if such emergency expenses are for Capital Equipment and/or Capital Improvements, SMG shall have no obligation under any circumstance to spend or commit funds other than funds then available in the New Facility account(s) for any such purpose. Immediately following such action, SMG shall inform the County of the situation and the action(s) taken, and the County shall pay into the appropriate account(s) the amount of funds, if any, spent or committed by SMG pursuant to this Section 5.10 in excess of budgeted amounts for (i) the Existing Facility or (ii) Capital Equipment and/or Capital Improvements for the New Facility.

6.

Records, Audits and Reports.
6.1
Records and Audits.

With respect to (i) the Existing Facility and (ii) the New Facility, SMG (a) shall keep separate, full and accurate accounting records relating to its activities at each such Facility in accordance with generally accepted United States accounting principles. SMG shall maintain a system of bookkeeping adequate for its operations hereunder and for the use of auditors. SMG shall give the County's authorized representatives access to such books and records maintained at each such Facility during reasonable business hours and upon reasonable advance notice. SMG shall keep and preserve for at least three (3) years following the completion and/or termination of this Agreement hard copies of all attendance records, sales slips, rental agreements, purchase orders, sales books, credit card invoices, bank books or duplicate deposit slips, and other evidence of Operating Revenues and Operating Expenses for such period for each such Facility, except that if after three (3) years following any Fiscal Year SMG desires to destroy any such records, SMG shall first notify the County in writing of such desire and give the County thirty (30) days to elect to take such records from SMG. In addition, on or before ninety (90) days following each Fiscal Year for which SMG is managing the Existing Facility and the New Facility hereunder, SMG shall furnish to the County a balance sheet, a statement of profit or loss and a statement of cash flows for each of the Existing Facility and the New Facility for the preceding Fiscal Year, prepared in accordance with generally accepted United States accounting principles and accompanied by an independent auditor's report of a nationally recognized, independent certified public accountant. The audit shall contain an opinion expressed by the independent auditor of the accuracy of financial records kept by SMG and of amounts due to the County. Each such audit shall also provide a certification of

Operating Revenues and Operating Expenses (as defined in this Agreement) for such Fiscal Year. The audit shall be conducted by a reputable firm selected by SMG with County approval. The County shall not withhold or delay such consent or approval unreasonably. Notwithstanding anything to the contrary herein, the costs of such audit shall be deemed Operating Expenses. If an audit, litigation or other action involving such records begins before the end of the three year period, the records shall be maintained for three years from the date that all issues arising out of the action are resolved or until the end of the three year retention period, whichever is later, unless prior to the end of such period of time, SMG notifies the County in writing of its desire to destroy such records and gives the County thirty (30) days to elect to take such records from SMG. The provisions of this subsection shall survive termination of this Agreement. The County shall have the right at any time, and from time to time, to (b) audit and/or cause nationally recognized independent auditors to audit all of the books of SMG relating to Operating Revenues and Operating Expenses for the Existing Facility and/or the New Facility, including, without limitation, cash register tapes, credit card invoices, duplicate deposit tapes, and invoices. No costs incurred by the County in conducting such audit shall be considered an Operating Expense. If any such audit demonstrates that the Operating Revenues or Operating Expenses reflected in any financial statements prepared by SMG and audited as specified in the foregoing subsection (a) are erroneous by more than two percent (2%), SMG shall pay to the County the reasonable cost of such audit and shall promptly remit to the County any portion of the fee paid to SMG for such Fiscal Year which is attributable to the error(s). The County's right to have such an audit made with respect to any Fiscal Year and SMG's obligation to retain the above records shall expire three (3) years after termination of this Agreement. If an audit, litigation or other action involving such records begins before the end of the three year period, the records shall be maintained for three years from the date that all issues arising out of the action are resolved or until the end of the three year retention period, whichever is later, unless prior to the end of such period of time, SMG notifies the County in writing of its desire to destroy such records and gives the City thirty (30) days to elect to take such records from SMG. The retention provisions of this subsection shall survive termination of this Agreement. 6.2 Annual Plan.

With respect to (i) the Existing Facility and (ii) the New Facility, SMG shall provide to the County on or before ninety (90) days prior to the end of each Fiscal Year, an annual management plan, which shall include the annual operating budget described in Section 5.3 for the next Fiscal Year. For the Existing Facility, the initial proposed annual plan shall be delivered to the County sixty (60) days prior to January 1,2009, or thirty (30) days after notice from the County as provided in Section 3.2(a), depending on the commencement date of the Management Term for the Existing Facility. The annual plan for each Facility shall include information regarding SMG's anticipated operations for such Fiscal Year at the Existing Facility and the New Facility, respectively, including planned operating maintenance activities by SMG, requested Capital Improvements and Capital Equipment purchases and an anticipated budget therefor, anticipated events at such Facility, anticipated advertising and promotional activities, and planned equipment and furnishings purchases. The annual plan for the Existing Facility shall be subject to review, revision and approval by the County. Although SMG shall provide the County with an annual plan for the New Facility, the County's approval of such plan is only required with respect to the proposed budget for Capital Improvements and Capital Equipment

purchases. Following review and revision by the County, SMG shall have thirty (30) days to incorporate the County's revisions into each plan. Upon written approval by the County, such plan shall constitute the operating program for SMG for the following Fiscal Year for the Existing Facility.

6.3

Monthly Reports.

By the twenty-fifth day of each month, SMG shall provide to the County, with respect to each of (i) the Existing Facility and (ii) the New Facility, a written monthly report in a form approved by the Cou,nty and similar to that used in other SMG-managed facilities setting out such Facility's anticipated activities for the upcoming month and reporting on the prior month's activities and finances. SMG shall include in such report a balance sheet, income statement, and other financial reports (such as a departmental expense report and event accounting). Additionally, SMG shall on a monthly basis make available to the Contract Administrator for inspection the flash settlement reports for events at the Facility.

7.

Employees.
7.1 SMG Employees.

Subject to Section 7.2, SMG shall select, train and employ at each Facility (a) such number of employees as SMG deems necessary or appropriate to satisfy its responsibilities hereunder; SMG shall use its best efforts to recruit employees who will be proficient, productive, and courteous to patrons, and, subject to Section 7.2, SMG shall have authority to hire, terminate and discipline any and all personnel working at each Facility. SMG shall assign to the Facility a competent, full-time general manager (b) who shall have an office at the Facility for the duration of the Management Term and Renewal . Term, if any. Such general manager shall have no other duties other than the day-to-day operation and management of the Facility, unless approved in writing by the Contract Administrator. From time to time, subject to prior written approval by the Contract Administrator, the general manager may provide assistance in connection with the consulting and/or management services provided by SMG or any of its Affiliates at other facilities managed, owned or leased by SMG or any of its Affiliates, provided that (i) such assistance does not affect in any material respect the responsibilities and duties of the general manager to the Facility and (ii) the cost of the salary, benefits, travel and other expenses of the general manager for the time spent in connection with providing such assistance shall be reimbursed by SMG to the appropriate operating account(s) of the Facility. Prior to SMG's appointment of such general manager, SMG shall consult with the Contract Administrator with respect to the qualifications of the general manager proposed by S M G . SMG shall deliver to the County the names and resumes of the senior (c) management personnel SMG proposes to employ at the Facility (e.g., the general manager, assistant general manager and director-level employees). If a proposed general manager is not reasonably acceptable to the County, (d) SMG shall submit names and resumes until the County reasonably accepts an employee for assignment to the general manager position.

At any time during the Management Term or the Renewal Term, if any, (e) the County may notify SMG if it believes that there is a performance problem with the general manager or assistant general manager. Within fifteen (15) days of receipt of such notice, SMG's senior management will meet with the Contract Administrator to discuss the problem and to propose steps that may be appropriate to address such problem. SMG employees at the Facility shall not for any purpose be considered to (f) be employees of the County, and SMG shall be solely responsible for all personnel-related matters, including their supervision and daily direction and control and for setting, and paying as an Operating Expense, their compensation (and federal and state income tax withholding) and any employee benefits. All costs related to their employment shall be an Operating Expense. 7.2 County Employees.

As of the date hereof, there are twenty-four (24) full-time and four (4) (a) part-time County employees at the Existing Facility, all of whom are non-union employees (the "Non-Union Employees") and none of whom are union employees (the "Union Employees"). During the Transition Period, all such County employees who choose to remain at the Existing Facility rather than to transfer to another County department or to otherwise cease working at the Existing Facility (collectively, the "Remaining County Employees") shall be entitled to continue working at the Existing Facility. During the Transition Period, the Remaining County Employees shall retain their status and benefits as County employees. During such period and with respect to the Remaining County Employees, SMG shall oversee the activities of the Remaining County Employees. At or prior to the end of the Transition Period, SMG shall have the right, (b) in its sole discretion, to offer employment to any Remaining County Employee, subject in the case of the Union Employees to applicable terms and conditions under the applicable collective bargaining agreements. Any such offer shall be on such terms as SMG, in its sole discretion, shall determine, subject in the case of the Union Employees to applicable terms and conditions under the applicable collective bargaining agreements. Any Remaining County Employee who chooses to accept any such offer of employment by SMG shall, upon the commencement of the Management Term for the Existing Facility, cease to be an employee of the County, shall become an employee of SMG upon such terms and conditions as determined by SMG, and shall no longer be deemed a Remaining County Employee for purposes of subsection (a) above. At the end of the Transition Period, the County shall cause all Remaining (c) County Employees in the applicable group who have not accepted an offer of employment by SMG to cease working at the Facility.

7.3

No Solicitation or Em~loyment Countv. by

During the period commencing on the date hereof and ending one (1) year after the termination of this Agreement, except with SMG's prior written consent, the County will not, for any reason, solicit for employment, or hire, the general manager, director-level employees and department heads employed at the Facility; provided, however, this provision shall not apply to SMG Employees who were previously employed by the County. In addition to any other

remedies which SMG may have, specific performance in the form of injunctive relief shall be available for the enforcement of this provision. The obligation of the County under this Section 7.3 shall survive the termination of this Agreement.

.

8.

Indemnification and Insurance.
8.1 Indemnification.

SMG shall indemnify, defend and hold harmless the County, its officers, (a) agents and employees from and against any and all Losses arising from the negligent acts, willful misconduct, fraud or activities outside of the scope of authority granted hereunder of SMG and/or its officers, employees, representatives, contractors, subcontractors or agents, or any material default or breach by SMG of its obligations specified herein; provided, however, that the foregoing indemnification shall not extend to Losses to the extent such Losses (i) arise from any breach or default by the County of its obligations under Section 8.l(b) below, (ii) are of the type that are or would normally be covered by commercial insurance covering (A) the Facility and its premises for physical damage, and (B) business interruption and extra expenses, irrespective of the decision of the County to carry or not to carry such insurance, or (iii) are caused by or arise out of the services provided by the architects, engineers and other agents retained by the County in connection with Capital Improvements or Capital Equipment purchases at the Facility. The County shall indemnify, defend and hold harmless SMG, its partners, (b) officers, agents and employees from and against any and all Losses arising from (i) any material default or breach by the County of its obligations specified herein, (ii) the fact that at any time prior to, as of, or after the commencement of the Management Term hereunder the Facility, any improvements related thereto and its premises are not or have not been, in compliance with all Laws, including, but not limited to, the ADA, (iii) the fact that prior to, as of, or after the commencement of the Management Term hereunder there is any condition on, above, beneath or arising from the premises occupied by the Facility which might, under any Law, give rise to liability or which would or may require any "response," "removal" or "remedial action" (as such terms are defined under CERCLA), (iv) any structural defect or unsound operating condition with respect to the Facility or the premises occupied by the Facility prior to, as of or after the commencement of the Management Term hereunder, (v) any obligation or liability under or in respect of any contract, agreement or other instrument pertaining to the Existing Facility and executed by SMG as authorized herein, (vi) any obligation or liability for physical damage to any real property and personal property assets located at the Facility or intended to be incorporated therein, whether such assets are insured by the County or whether the County decides not to insure for such damage and Losses (including without limitation damages or Losses falling within any insurance deductible), (vii) any non-compliance with any Pre-Existing Agreement on or prior to the commencement of the Management Term, or (viii) any act or omission carried out by SMG at or pursuant to the written direction or instruction of the County, its agents or employees; provided, however, that the foregoing indemnification under clauses (i), (ii), (iii), (iv), (v), (vi) or (vii) above shall not extend to Losses to the extent such Losses arise from (A) the negligent acts, willful misconduct, fraud or activities outside of the scope of authority granted hereunder of SMG and/or its officers, employees, representatives, contractors, subcontractors or

agents as set forth in Section 8.l(a) hereof, or (B) any material default or breach by SMG of its obligations specified herein. The provisions set forth in subsections (a) and (b) above shall survive (c) termination of this Agreement; provided, however, that except for indemnification based upon Section 8.l(b) (ii), (iii), (iv), (v) or (vii) above, a claim for indemnification pursuant to Section 8.1 shall be valid only if the party entitled to such indemnification provides written notice thereof to the other party prior to five (5) years following the date of termination of this Agreement. The terms of all insurance referred to in Section 8, including without (d) limitation (i) the property insurance policies of the County, and (ii) the policies of any independent contractors retained by the County or hired by SMG (such as, emergency medical technicians who are not employed by SMG), shall preclude subrogation claims against SMG, its partners, the County and their respective officers, directors, employees and agents. The foregoing indemnification rights shall be the exclusive remedies of (e) each party hereto (other than any right to terminate this Agreement pursuant to Section 12 arising from any breach of, default under or performance pursuant to this Agreement). IN NO EVENT SHALL EITHER PARTY BE LIABLE OR (f) RESPONSIBLE FOR ANY PUNITIVE DAMAGES, WHETHER BASED UPON BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, STRICT TORT LIABILITY OR OTHERWISE. 8.2 Liability Insurance.

SMG shall secure prior to the commencement of the Management Term (a) hereunder and shall keep in force at all times during the term of this Agreement, sufficient commercial liability insurance, including public liability and property damage, covering premises liability, and SMG operations hereunder and as long as SMG is providing food and beverage concession and catering services hereunder, liquor liability, which insurance shall, at a minimum, be in the amount of One Million Dollars ($1,000,000) for bodily injury and One Million Dollars ($1,000,000) for property damage, including products and completed operations, and independent contractors. SMG shall also maintain Comprehensive Automotive Bodily Injury and (b) Property Damage Insurance for business use covering all vehicles operated by SMG officers, agents and employees in connection with the Facility, whether owned by SMG, the County, or otherwise, with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence (including an extension of hired and non-owned coverage). Commencing with the Management Term and continuing thereafter until (c) this Agreement is terminated, SMG shall also maintain: professional liability insurance with coverage of at least One (i) Million Dollars $1,000,000.00) for claims of negligent errors, acts or omissions by SMG; and

employment practices liability insurance with coverage of at least (ii) One Million Dollars $1,000,000) for claims relating to the employment practices of SMG at the Facility pertaining to its employees. Commencing with the Management Term and continuing thereafter until (d) this Agreement is terminated, SMG shall also maintain sufficient Umbrella liability insurance in the amount of at least Five Million Dollars ($5,000,000) in excess of coverage provided by automobile and commercial liability policies required in Sections 8.2(a) and 8.2(b). SMG shall be the named insured under all insurance required herein. The (e) County shall be an additional insured under the insurance described in Sections 8.2(a) and (b), as its interests may appear, and such insurance in Sections 8.2fa) and (b) shall include the broadest form of contractual liability coverage available. All insurance shall be from insurance companies licensed to do business in the State of Kansas with a minimum financial rating of "A" and shall be written in accordance with standard forms of insurance policies approved by the Kansas Department of Insurance. Certificates evidencing the existence of the above insurance, as well as the (f) policies of insurance required under Sections 8.3 and 8.4, shall be delivered to the Contract Administrator no later than five (5) business days prior to the commencement of the Management Term. Each such policy of insurance and certificate shall contain a valid provision or endorsement that the insurer cannot cancel or terminate coverage without the insurer first giving thirty (30) days written notice to the County of such cancellation or termination. Except as otherwise agreed herein, the parties hereto acknowledge that the above insurance may contain exclusions from coverage which are reasonable and customary for insurance of such type. With respect to insurance procured by it, SMG shall deliver to the (g) Contract Administrator satisfactory evidence of such renewal of such insurance within ten (10) days after such insurance's expiration date except for any insurance expiring on the termination date of this Agreement or thereafter. Except as provided in Section 8.5, all insurance procured by SMG in (h) accordance with the requirements of this Agreement shall be primary over any valid and collectible insurance carried by the County and not require contribution by the County. 8.3 Workers Compensation Insurance.

'

SMG shall at all times maintain worker's compensation insurance (including occupational disease hazards) with an authorized insurance company or through the Kansas State Compensation Insurance Fund or through an authorized self-insurance plan approved by the State of Kansas, insuring its employees at the Facility in amounts equal to or greater than required under applicable Laws. 8.4 Fidelity Insurance.

SMG shall maintain during the term of this Agreement Fidelity Insurance covering all of SMG's personnel under this Agreement in the amount of Five Hundred Thousand

Dollars ($500,000.00) for each loss, to reimburse the County for losses experienced due to the dishonest acts of SMG's employees.

8.5

Certain Other Insurance.

If any of the Pre-Existing Agreements consist of agreements with independent contractors to provide services in respect of the Facility, the County shall request that such contractors name SMG as an additional insured under any insurance maintained by such contractors pursuant to the terms of such Pre-Existing Agreements and in such event to deliver to SMG promptly after request therefor a certificate of such insurance evidencing the existence . thereof. In addition, if SMG enters into any agreements during the Management Term and any Renewal Term with any independent contractors for the provision of services hereunder, SMG shall have the right to require such contractors to name SMG as an additional insured under any insurance required by SMG thereunder.

9.

Ownership of Assets.
9.1 Ownership.

The ownership of buildings, improvements, and real estate, technical and office equipment and facilities, furniture, displays, fixtures, vehicles and similar tangible property located at the Facility shall remain with the County. The County shall further retain exclusive ownership of all intangible property related to the Facility and the tangible property located at the Facility, including unexpired warranties and guaranties, keys, plans, and specifications. Ownership of and title to all intellectual property rights of whatsoever value, held in the County's name shall remain in the name of the County. The ownership of consumable assets (such as office supplies and cleaning materials) purchased with Operating Revenues or County funds shall remain with the County, but such assets may be utilized and consumed by SMG in the performance of services under this Agreement. The ownership of data processing programs and software owned by the County, including programs and software purchased by SMG with funds provided by the County andfor Operating Revenues for the Facility, shall remain with the County, and the ownership of data processing programs and software owned by SMG shall remain with SMG. SMG shall not take or use, for its own purposes, customer or exhibitor lists or similar materials developed by the County for the use of the Facility, unless written consent is granted by the County. Ownership of equipment, furnishings, materials, or fixtures not considered to be real property and other personal property purchased by SMG with County funds for use at and for the Facility shall vest solely in the County automatically and immediately upon purchase or acquisition. Except as otherwise provided in this Agreement, the assets of the County as described herein shall not be pledged, liened, encumbered or otherwise alienated or assigned by SMG without the prior written approval of the County. 9.2 County Obligations.

Except as herein otherwise set forth, throughout the term of this Agreement, the County will maintain full beneficial use and ownership of the Facility and will pay, keep, observe and perform all payments, terms, covenants, conditions and obligations under any bonds,

debentures or other security agreements or contracts relating to the Facility to which the County may be bound.

10.

Assignment; Affiliates.
10.1 Assignment.

Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party hereto. Notwithstanding the foregoing, SMG may assign all or any part of its rights hereunder to an Affiliate, provided that (i) 'such Affiliate possesses substantially the same degree of expertise, quality of personnel and credit worthiness as originally provided under this Agreement, and (ii) such assignment shall be at no increased cost to the County. For sake of clarity, the parties acknowledge that the foregoing does not preclude the assignment by SMG of its rights to receive its management and incentive fees hereunder to its lender(s) as collateral security for SMGYs obligations under any credit facilities provided to it by such lender(s), provided that such collateral assignment shall not in any event cover SMG's rights to manage, promote or operate the Facility hereunder. 10.2 SMG Transactions With Affiliates.

In connection with its management responsibilities hereunder relating to (a) the purchase andfor procurement of equipment, materials, supplies, inventories, and services for the Facility, SMG shall have the right, but not the obligation, to purchase and/or procure from, or otherwise transact business with, an Affiliate of SMG. In the event SMG purchases and/or procures from, or otherwise transacts business with, an Affiliate of SMG as contemplated by the foregoing sentence, the prices charged and services rendered shall be competitive with those obtainable from others rendering comparable goods andfor services of like kind. To ensure . compliance in this respect, SMG agrees to obtain at least two (2) other competitive bids from Persons other than SMG's Affiliates whenever SMG proposes to transact business with an Affiliate for the provision of such goods or services hereunder. In addition, SMG may license the use of the Facility or any part thereof to itself in connection with any event in the promotion of which SMG is involved, so long as the license fee charged is on prevailing rates and terms or such other rates and terms as the County approves in writing prior to such event. The County acknowledges that SMG manages other public assembly (b) facilities which may, from time to time, be in competition with the Facility. The management of competing facilities will not, in and of itself, be deemed a conflict of interest or breach of SMG's duties hereunder; provided, however, in all instances in which the Facility is in competition with other public assembly facilities managed by SMG for the solicitation of certain events, SMG shall not involve its principal office (currently in Philadelphia, Pennsylvania) on behalf of any such other facility in an attempt to influence the decision-making process regarding the selection of a site by such events.

11.

Laws and Permits.
11.1 Permits. Licenses. Taxes and Liens.

SMG shall procure any permits and licenses required for the business to be conducted by it hereunder. The County shall cooperate with SMG in applying for such permits and licenses. SMG shall deliver copies of all such permits and licenses to the Contract Administrator. SMG shall pay promptly, out of the accounts specified in Section 5.6, all taxes, excises, license fees and permit fees of whatever nature arising from its operation, promotion and management of the Facility. No lien of any kind shall exist against the Facility or any property of the County related thereto unless such lien is approved in writing by the County. Additionally, SMG covenants that it shall not permit any lien to be placed upon the Facility or any property of the County located thereat in connection with any work or labor performed or materials furnished by any. mechanic or materialman at the Facility, except to the extent that SMG is in good faith disputing the placement of such lien and diligently pursuing the resolution of such dispute. 11.2 Governmental Compliance.

SMG, its officers, agents and employees shall comply with all Laws applicable to SMG's management of the Facility hereunder and the performance of its Consulting Services hereunder. Without limiting the foregoing, with respect to the ADA, SMG will comply with Title I11 of the ADA and the provision of such auxiliary aids or alternate services as may be required by the ADA. Nothing in this Section 11.2 or elsewhere in this Agreement shall, however, require SMG to undertake any of the foregoing compliance activity, nor shall SMG have any liability under this Agreement therefor, if (a) such activity requires any Capital Improvements or Capital Equipment purchases, unless the County provides funds for such Capital Improvements and Capital Equipment purchases pursuant to Section 5.8 hereof, or (b) any Pre-Existing Agreement fails to require any licensee, lessee, tenant, promoter or user of any portion of the Facility to comply, and to be financially responsible for compliance, with Title I11 of the ADA in connection with any activities of such licensee, lessee, tenant, promoter or user at the Facility. Furthermore, SMG shall require every licensee, lessee, tenant, promoter or user of any portion of the Facility to comily, and to be financially responsible for compliance, with Title I11 of the ADA in connection with any activities of such licensee, lessee, tenant, promoter or user at the Facility. 11.3 Discrimination Prohibited. (a) SMG agrees to the following provisions statutorily mandated by K.S.A.

44- 1030:
SMG shall observe the provisions of the Kansas Act Against (i) Discrimination, and the Kansas Age Discrimination in Employment Act, and shall not discriminate against any person in the performance of work under this contract because of race, religion, color, sex, disability, national origin, ancestry, or age. In all solicitations or advertisements for employees, SMG shall (ii) include the phrase "equal opportunity employer" or a similar phrase to be approved by the Kansas Human Rights Commission.

(iii) Notwithstanding any provision in this Agreement to the contrary, if SMG fails to comply the provisions of K.S.A. 44-1031, requiring reports to be submitted to the Kansas Human Rights Commission when requested by that Commission, SMG shall be deemed to have materially breached this Agreement and it may be canceled, terminated or suspended, in whole or in part, by the County. (iv) Notwithstanding any provision in this Agreement to the contrary, if SMG is found guilty of a violation of the Kansas Act Against Discrimination under a decision or order of the Kansas Human Rights Commission which has become final, SMG shall be deemed to have materially,breached this Agreement and it may be terminated, in whole or in part, by the County. SMG shall include the provisions of (i) through (iv) inclusively of (v) this subsection in every contract made pursuant to this Agreement, so that such provisions will be binding upon such contracting Person. (vi) The provisions of this subsection shall not apply to a contract, entered into by SMG, in its own name or on behalf of the County, and a Person who: (A) employs fewer than four employees during the term of such contract; or (B) whose contract with SMG and/or the County cumulatively totals $5,000.00 or less during the fiscal year of the County pursuant to K.S.A. 44-1031(c). SMG shall comport its performance under this Agreement with all (b) pertinent provisions set out in all applicable Federal and State anti-discrimination acts and associated regulations, all as amended, including, but not limited to: (i) and 45 C.F.R. Part 80); Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.,

Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq., (ii) and 29 C.F.R. Parts 1602,1604, 1605, &1606); (iii) The Age Discrimination in Employment Act (29 U.S.C. 621 et seq., and 29 C.F.R. Part 1625); (iv) 45 C.F.R. Parts 90 & 91); (v) (vi) C.F.R. Parts 84 & 85); The Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq., and The ADA; The ~ehabilitation of 1973 (29 U.S.C. 794 et seq., and 45 Act

(vii) The Kansas Act Against Discrimination (K.S .A. 44- 1001 et seq., and K.A.R. Articles 21-30 through 21-34,21-50, & 21-70); and

(viii) The Kansas Discrimination in Employment Act (K.S.A. 44-1 110 et seq.), including the Kansas Age Discrimination in Employment Act (K.S.A. 44-1 111 et seq., and K.A.R. Article 21-80). Notwithstanding any provision in this Agreement to the contrary except (c) for those provisions regarding SMG's obligations to comply with the ADA, SMG shall be deemed in default of this Agreement and it may be immediately canceled, terminated, or suspended, in whole or in part, by the County if SMG violates the applicable provisions of any of the Federal or State anti-discrimination acts identified in this section.

12.

Termination.
12.1 Termination Upon Default.

Either party may terminate this Agreement upon a default by the other party hereunder. A party shall be in default hereunder if (i) such party fails to pay any sum payable hereunder within sixty (60) days after same is due and payable, or (ii) such party fails in any material respect to perform or comply with any of the other terms, covenants, agreements or conditions hereof and such failure continues for more than thirty (30) days after written notice thereof from the other party. In the event that a default (other than a default in the payment of money) is not reasonably susceptible to being cured within the thirty (30) day period, the defaulting party shall not be considered in default if it shall within such thirty (30) day period have commenced with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default. 12.2 Termination Other than Upon Default.

SMG shall have the right to terminate this Agreement (i) under the (a) circumstances and with prior notice to the County as described in Sections 5.3 or 5.5 hereof, or (ii) upon one hundred eighty (180) days written notice to the County, if the County elects not to make Capital Improvements or Capital Equipment purchases at the applicable Facility to the extent that such election materially interferes with, impedes or impairs the ability of SMG to manage the applicable Facility effectively. The County shall have the right to terminate this Agreement (i) under (b) Sections 11.3 or 13.1 hereof, or (ii) upon the occurrence of (A) SMG filing or having filed against it a voluntary or involuntary petition in bankruptcy or a voluntary or involuntary petition or an answer seeking reorganization, an arrangement, or readjustment of its debts, or for any other relief under the United States Bankruptcy Code, as amended, or under any other state or federal insolvency act or law, or any action by SMG indicating its consent to, approval of, or acquiescence to the appointment of a receiver or trustee for all or a substantial part of its property, or (B) the liquidation, dissolution or termination of the partnership existence of SMG. The County shall further have the right to terminate this Agreement as to (c) the Existing Facility, at its sole discretion, if it desires to self-manage such Facility or to terminate its current use and operations, with ninety (90) days prior written notice to SMG. In the event this Agreement is terminated as to the Existing Facility only, all provisions relating to

such Facility shall be of no further effect, including the compensation payments to be paid to SMG. SMG shall have the right to terminate this Agreement under the (d) circumstances and with prior notice to the County as described in the last paragraph of Section 4.3(d) hereof. Effect of Termination. In the event this Agreement expires or is terminated (or the services hereunder are terminated under Section 12.2 with respect to only one Facility), all Operating Expenses incurred or committed for prior to the date of expiration or termination for the applicable Facility shall be paid using funds on deposit in the accounts described in Sections 5.6 and 5.7 and to the extent such funds are not sufficient, the County shall pay all such Operating Expenses for the applicable Facility, subject, however, to SMG's obligations to fund any costs, expenses or liabilities set forth in Section 5.9. Further, the County shall pay SMG all fees earned to the date of expiration or termination (the fees described in Section 4 hereof being subject to proration, as appropriate), provided that the County shall be entitled to offset against such unpaid fees any Losses incurred by the County in remedying any default by SMG hereunder which resulted in such termination (other than the fees or expenses of any replacement manager for the Facility). Additionally, in the event this Agreement expires or is terminated (or the services hereunder are terminated under Section 12.2 with respect to only one Facility), without any further action on the part of SMG or the County, the County shall, or shall cause another management company retained by it to, accept the assignment of SMG's rights, and assume and perform all of SMG's obligations, arising after the date of expiration or termination of this Agreement, under any licenses, occupancy agreements, rental agreements, booking commitments, advertising agreements, concession agreements, and any other contracts relating to the applicable Facility which have been executed by SMG hereunder, except (i) to the extent that any such license, agreement, commitment or contract was executed by SMG in violation of any of the restrictions applicable to SMG's right to execute such licenses, agreements, commitments or contracts contained in this Agreement and (ii) for any such license, agreement, commitment or contract to which the consent of the other party thereto is required for such assignment and assumption unless such consent is obtained (in the case of any such consent, SMG will use commercially reasonable efforts to obtain such consent and the County will cooperate in any reasonable manner with SMG to obtain such consent). Upon the expiration of this Agreement or a termination pursuant to Section 12.1, 12.2, or 13.5, all further obligations of the parties hereunder shall terminate except for the obligations in this Section 12.3 and such other provisions that expressly survive termination of this Agreement. 12.4 Surrender of premises:

Upon termination of this Agreement (termination shall, for all purposes in this Agreement, include termination pursuant to the terms of this Section 12 and any expiration of the term hereof), SMG shall immediately surrender and vacate the applicable Facility upon the effective date of such termination. The applicable Facility and all equipment and furnishings shall be returned to the County in good repair, reasonable wear and tear excepted, to the extent funds were made available therefor by the County and subject to SMG's obligations to fund Net

Operating Losses of the New Facility as provided in Section 4.3 hereof. All reports, records, including financial records, and documents maintained by SMG at the Facility relating to this Agreement other than materials containing SMG's proprietary information shall be immediately surrendered to the County by SMG upon termination.

13.

Miscellaneous.
13.1 Cash Basis and Budget Laws.

The right of the County to enter into this Agreement is subject to the provisions of the Cash Basis Law (K.S.A. 10-1112 and 10-1113), the Budget Law (K.S.A. 79-2935), and other laws of the State of Kansas. This Agreement shall be construed and interpreted so as to ensure that the County shall at all times stay in conformity with such laws, and as a condition of this Agreement, the County reserves the right to unilaterally sever, modify, or terminate this Agreement at any time if, in the opinion of its legal counsel, the Agreement may be deemed to violate the terms of such laws. 13.2 No Partnership or Joint Venture.

Nothing herein contained is intended or shall be construed in any way to create or establish the relationship of partners or a joint venture between the County and SMG. None of the officers, agents or employees of SMG shall be or be deemed to be employees of the County for any purpose whatsoever. 13.3 Entire Agreement.

This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings with respect , thereto. No other agreements, representations, warranties or other matters, whether oral or written, will be deemed to bind the parties hereto with respect to the subject matter hereof. 13.4 Written Amendments.

This Agreement shall not be altered, modified or amended in whole or in part, except in a writing executed by each of the parties hereto. 13.5 Force Maieure.

No party will be liable or responsible to the other party for any delay or (a) failure or inability to perform caused by "Force Majeure" if notice is provided to the other party within ten (10) days of date on whichsuch party gains actual knowledge of the event of "Force Majeure" that such party is unable to perform. The term "Force Majeure" as used in this Agreement means the following: an act of God, strike, war, public rioting, lightning, fire not caused by either party's gross negligence or willful misconduct, storms, floods, explosions not caused by either party's gross negligence or willful misconduct, inability to obtain materials or supplies due to widespread scarcity, epidemics, landslides, earthquakes, washouts, civil disturbances, freezing of equipment, terrorist acts, and any other cause of the kind or type specifically enumerated above which is not reasonably within the control of the party whose

performance is to be excused and which by the exercise of due diligence could not be reasonably prevented or overcome. Neither party hereto shall be under any obligation to supply any service or (b) services if and to the extent and during any period that the supplying of any such service or services or the provision of any component necessary therefor shall be prohibited or rationed by any Law. In the event of damage to or destruction of any Facility by reason of fire, (c) storm or other casualty or occurrence of any nature or any regulatory action or requirements that, in either case, is expected to render such Facility materially untenantable, notwithstanding the County's reasonable efforts to remedy such situation, for a period estimated by an Architect selected by the County at the request of SMG of at least one hundred eighty (180) days from the happening of the fire, other casualty or any other such event, either party may terminate this Agreement upon ninety (90) days written notice, or, this Agreement as to the Facility damaged or destroyed, immediately upon written notice to the other. In the event that this Agreement is terminated as to only one Facility, all provisions relating to such Facility shall be of no further effect including the compensation payments to be paid to SMG. In the event that one or both of the Facilities becomes either wholly or partially untenantable as a result of any of the foregoing and this Agreement is not terminated, appropriate adjustments to the compensation arrangement in Sections 4.2 and 4.3 hereof and, if applicable, the Net Operating Funding obligation in Section 4.3 shall be made. SMG may suspend performance required under this Agreement as to any (d) damaged or destroyed Facility, without any further liability, in the event of any Force Majeure, which event is of such effect and duration as to effectively curtail the use of the Facility so as effect a substantial reduction in the need for the services provided by SMG for a period in excess of thirty (30) days; provided, however, that for the purposes of this subsection, SMG shall have the right to suspend performance retroactively effective as of the date of the use of the Facility was effectively curtailed. "Substantial reduction in the need for the services provided by S M G shall mean such a reduction as shall make the provision of any services by SMG economically impractical. No payments of the management fees otherwise due and payable to SMG for services to the affected Facility shall be made to it (and SMG's obligation to fund Net Operating Losses of the New Facility under Section 4.3 hereof shall be waived) during the period of suspension. In lieu thereof, the County and SMG may agree to a reduced management fee payment for the period of reduction in services required and to such other mutually agreed upon modifications to the terms of this Agreement pertaining to the affected Facility. 13.6 Binding Upon Successors and Assigns; No Third-Party Beneficiaries.

This Agreement and the rights and obligations set forth herein shall inure (a) to the benefit of, and be binding upon, the parties hereto and each of their respective successors and permitted assigns. This Agreement shall not be construed as giving any Person, other than (b) the parties hereto and their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement or any of the provisions herein contained, this

Agreement and all provisions and conditions hereof being intended to be, and being, for the sole and exclusive benefit of such parties and their successors and permitted assigns and for the benefit of no other Person. 13.7 Notices.

Any notice, consent or other communication given pursuant to this Agreement will be in writing and will be effective either (a) when delivered personally to the party for whom intended, (b) on the second business day following mailing by an overnight courier service that is generally recognized as reliable, (c) on the fifth day following mailing by certified or registered mail, return receipt requested, postage prepaid, or (d) on the date transmitted by telecopy as shown on the telecopy confirmation therefor as long as such telecopy transmission is followed by mailing of such notice by certified or registered mail, return receipt requested, postage prepaid, in any case addressed to such party as set forth below or as a party may designate by written notice given to the other party in accordance herewith. To the County: County Manager's Office Sedgwick County, Kansas ATTN: Assistant County Manager 525 North Main, Suite 343 Wichita, Kansas 67203 Telecopy: (3 16) 383-7946 With a copy (which shall not constitute notice) to: Richard A. Euson Office of the County Counselor Sedgwick County Courthouse 525 North Main, Suite 359 Wichita, Kansas 67203 Telecopy: (3 16) 383-7007 To SMG: SMG 701 Market Street, 4th Floor Philadelphia, PA 19106 Attention: President Telecopy: (2 15) 592-6699 With a copy (which shall not constitute notice) to: Stradley, Ronon, Stevens & Young 2600 One Commerce Square Philadelphia, PA 19103

Attention: William R. Sasso, Esq. Or Steven A. Scolari, Esq. Telecopy: (215) 564-8120 13.8 Section Headings and Defined Terms.

The section headings contained herein are for reference purposes only and shall not in any way affect the meaning and interpretation of this Agreement. The use of masculine pronouns shall include the feminine and neuter. Except as otherwise indicated, all agreements defined herein refer to the same as from time to time amended or supplemented or the terms thereof waived or modified in accordance herewith and therewith. 13.9 Counterparts.

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original copy of this Agreement, and all of which, when taken together, shall be deemed to constitute but one and the same agreement. 13.10 Severabilitv.

The invalidity or unenforceability of any particular provision, or part of any provision, of this Agreement shall not affect the other provisions or parts hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions or parts were omitted. 13.11 Non- Waiver.

A failure by either party to take any action with respect to any default or violation by the other of any of the terms, covenants, or conditions of this Agreement shall not in any respect limit, prejudice, diminish, or constitute a waiver of any rights of such party to act with respect to any prior, contemporaneous, or subsequent violation or default or with respect to any continuation or repetition of the original violation or default. This non-waiver provision may only be waived by a party hereto by a written acknowledgement of such waiver by such party. 13.12 Consent.

Wherever the consent or approval of a party is required under the terms of this Agreement, the party whose consent or approval is required shall not unreasonably withhold or delay such consent or approval. 13.13 Certain Representations and Warranties.

The County represents and warrants to SMG the following: (i) all required (a) approvals have been obtained, and the County has full legal right, power and authority to enter into and perform its obligations hereunder, and (ii) this Agreement has been duly executed and delivered by the County and constitutes a valid and binding obligation of the County, enforceable in accordance with its terms, except as such enforceability may be limited by

bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. SMG represents and warrants to the County the following: (i) all required (b) approvals have been obtained, and SMG has full legal right, power and authority to enter into and perform its obligations hereunder, and (ii) this Agreement has been duly executed and delivered by SMG and constitutes a valid and binding obligation of SMG, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. 13.14 Governing Law.

.

This Agreement will be governed by and construed in accordance with the internal laws of the State of Kansas, without giving effect to otherwise applicable principles of conflicts of law. 13.15 Forum Selection.

Any dispute, controversy, or claim arising out of or relating to this Agreement shall be exclusively and finally resolved in either the Eighteenth Judicial District District Court of the State of Kansas or the United Stated District Court sitting in Sedgwick County, Kansas. SMG hereby irrevocably submits to the jurisdiction and venue of such Courts and expressly waives any right to file in or remove to any other venue or jurisdiction any dispute, controversy, or claim arising out of or relating to this Agreement. 13.16 No Tenancy Created.

The only relationship created by this Agreement is that of independent contractor. This Agreement is not intended to create a landlord-tenant relationship, and no such relationship shall be inferred from any provision hereof. 13.17 No Inferences Regarding Drafting.

The parties acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between the parties and their attorneys, and this Agreement reflects their mutual agreement regarding the same. Because of such negotiations and discussions, it would be inappropriate to deem any party to be the drafter of this Agreement, and therefore no presumption for or against validity as to any interpretation hereto, based upon the identity of the drafter shall be applicable in interpreting or enforcing this Agreement. 13.18 Cooperation.

The parties desire to cooperate with each other in the management and operation of the Facility pursuant to the terms hereof. In keeping with this cooperative spirit and intent, any dispute arising hereunder will first be referred to the parties' respective agents or representatives prior to either party initiating a legal suit, who will endeavor in good faith to resolve any such disputes within the limits of their authority and within twenty (20) days after

the commencement of such discussions. If and only if any dispute remains unresolved after the parties have followed the dispute resolution procedure set forth above, either party may initiate suit as provided herein. IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written. SEDGWICK COUNTY By: David M. ~ n i hChairman, First District , Sedgwick County Board of County Commissioners

By: Don Brace, Sedgwick County Clerk

APPROVED AS TO FORM ONLY:

By:
G p

SMG By: Name: Title:

M .~ . c 3 i,de+i-/% l?'cz.t~,4 6 -t C A
I

g

W

EXHIBIT "A" PRE-EXISTING AGREEMENTS
Pursuant to the definition contained in Section 1 hereof, these lists of Pre-Existing Agreements are to be completed by the County and delivered to SMG at least thirty (30) days prior to the commencement of the Management Term for the Existing Facility and the New Facility.

EXHIBIT "B" PRE-OPENING OPERATIONAL TASKS
A. As a consultant for the County, SMG will, during the Consulting Period: 1. Utilize the SMG personnel who serve as the New Facility's Regional Vice President and General Manager as the channels through which all communications among SMG, the County or the County's architectural and engineering firm(s) and the other consultants, representatives and agents of the County, regarding operational aspects of the New Facility referred to in this Exhibit "B" will be made. Submit to the County written proposals regarding pre-opening marketing, advertising and sponsorship plans, including a public relations plan to local and national media. Submit to the County written recommendations regarding appropriate Policies and Procedures to be implemented in operating the New Facility Recommend marketing and event booking strategies and relationships with organizations, promoters and regional rnarketinglsales agencies such as the local Convention and Visitors Bureau and area hotels. In connection with its booking activities hereunder, SMG shall use its relationship with Live Nation for this Facility to leverage the resources of both SMG and Live Nation to bring events to both the New Facility and . the Existing Facility. Prepare a written list of operating supplies to be procured by the County for the start-up of the New Facility. Recommend in writing a booking policy and a rental rate policy for the New Facility that are distinct from that of the Existing Facility. Recommend approaches so that potential users will not simply compare rates at the New Facility and the Existing Facility in determining which facility to use. Make recommendations regarding economies of scale and potential fiscal savings at each of the New Facility and the Existing Facility. Recommend strategies and relationships to solicit primary third-party vendor service programs such as parking, ticketing, etc. Provide a written market analysis/feasibility study for the future use of the Britt Brown Arena by June 1,2008 at no additional cost to the County.

2.

3.

4.

5.

6.
7.

8.

9.
10.

B.

As the managing consultant of the County to operate, manage and promote the New Facility during the Consulting Period, SMG will: Represent the New Facility's interests, as necessary or appropriate, with County departments. Implement booking and rental rate policies for the New Facility proposed by SMG and approved by the County. Negotiate, execute and deliver, in SMG's name, tenanther agreements, booking commitments and licenses; however, if such agreement is for a term of more than one (1) year or greater, then SMG and the County shall jointly approve such agreement (which approval is at each party's sole discretion, to be exercised reasonably). Negotiate, execute and deliver, in SMG's name, service contracts and vendor agreements, provided that (i) to the extent that any such contract or agreement will extend beyond the anticipated Management Term, the County must prior thereto approve in writing such contract or agreement, which approval shall be at the County's sole discretion, not to be unreasonably withheld, or (ii) if such agreement involves a major revenue stream that can impact the profitability of the New Facility, including ticketing and sponsorships, then SMG and the County shall jointly approve such agreement (which approval shall be at each party's sole discretion, to be exercised reasonably). Implement for the County all advertising and sponsorship sales for the New Facility consistent with the advertising plan approved by the County and subject to the provisions of Section 2.3(k) hereof. Maintain accurate accounting records relating to its activities on behalf of the New Facility. Recommend insurance coverages for the New Facility, and upon approval thereof by the County, obtain such insurance in accordance with Section 8 hereof, naming SMG and the County, as named insured or additional insureds, as appropriate, such insurance to waive all subrogation claims against SMG or the County (and their respective agents and employees). Issue to the County periodic financial reports reflecting SMG's activities on behalf of the New Facility. Develop and implement a marketing plan for the New Facility that is designed (a) to avoid sales efforts that overlap with those for the Existing Facility and (b) to promote a clear identity for the New Facility that is distinct from the identity of the Existing Facility so as to lessen confusion surrounding event locations (i.e., use facility names and logos which are dissimilar).

EXHIBIT "C" DESIGN, DEVELOPMENT AND CONSTRUCTION TASKS
A. As a consultant for the County, SMG will during the Consulting Period: 1. Designate an SMG employee who will serve as senior design development and construction consulting executive for SMG, through whom all communications among SMG, the County, its architectural and engineering firm(s), and the other consultants, representatives and agents of the County relating to the consulting responsibilities referred to in this Exhibit "C" will be channeled. Prior to the issuance of construction documents (Final Design Phase), a "Plan Design Review" team consisting of SMG operations executives representing various disciplines from within SMG will review the following components of the overall design and will make written recommendations to the County and its other consultants, agents and representatives with respect thereto prior to issuance of construction documents. The Plan Design Review tasks will encompass the following: (a) Utility Review - review electrical lighting and audiolvisual plans, with a focus on the adequacy of utility service in light of projected user and facility needs. Telecommunications Review - formulate anticipated end user requirements for reference in system design. Develop equipment list in consultation with telecommunications consultant, and develop administrative telecommunications plan in light of facility needs. Keying System Review - review master key and hardware schedules. Develop keying plan for contractor to follow, with emphasis on developing long-term focus on promoting building securitylsafety needs. Interior Finish Review - review interior finish components, including public furniture, carpet, etc. with a focus on desire for cost-efficient long-term care and upkeep; make recommendations regarding the purchase of proper maintenance equipment and initial procurement of durable fixtures. Security Systern/CCTV Review - review of planned security/CCTV system with a focus on desire to identify, with prioritization, security needs.

2.

(b)

(c)

(d)

(e)

(f)

Directional Signage Review - review signage specifications in design plans with a focus on desire that signage meet the needs of anticipated event schedule and related vehiclelpatron traffic patterns. Assist the graphics designers in the selection of interior graphics communication needs and locational plans. Kitchen/Concession Review - review both permanent and portable kitchen specifications and equipment and, together with any proposed concessionaire, recommend layout of facilities and procurement of small wares., HVAC Review - review HVAC specifications with view to control of appropriate zones in the facility that will tend to optimize energy conservation. Load InILoad Out - review ingress and egress with a view to event participation and production, including ceiling heights, storage availability and truck accessibility. RiggingJHanging Point Analysis -- develop specifications and guidelines together with project designer and structural consultants with a view to safety and load-in and load-out efficiency considerations. Staging and Seating -- recommend seating and staging types and provide specifications with a view to set-up, maintenance, storage and labor efficiency considerations.

(g)

:
(h)

(i)

(j)

(k)

3.

Review and comment in writing on reports and studies provided by the County's other consultants which are required for the design of the project and which affect operations (i.e., acoustical study, vertical transportation study, etc.). Make written recommendations regarding layout for administrative and box offices and back-of-house areas for incorporation into the design documents. Review and comment in writing on proposed locations, types and sizes of the exterior and interior signage. Review design documents at predetermined intervals to identify whether comments resulting from previous design reviews have been incorporated. Attend planning construction meetings on an on-going, as needed basis until the general construction of the New Facility commences.

4.

5.

6.

EXHIBIT "I)"
FF&E CONSULTING TASKS
A.
SMG will provide during the Consulting Period the following FF&E consulting services:

1.

Be available to recommend to the County a proposed inventory of fixture, furniture and equipment ("FF&E) components which will be based on SMG's judgments about the size and specific needs of the New Facility and SMG's experience as to which equipment is necessary to operate the New Facility effectively.
Be available to recommend to the County modifications to the working budget for the construction and equipping of the Facility based upon an analysis of hard and soft costs for FF&E reflected in the FF&E Inventory. Propose modifications to the FF&E Inventory based upon programmatic changes to the County's working budget for the construction and equipping of the New Facility. Provide general parameters and general information to the County to assist in the design of the technical systems for the New Facility, including the telecommunications system and radio communications.

2.

3.

4.

EXHIBIT "E" PRE-OPENING BUDGET

NEW SEDGWICK COUNTY ARENA PRE-OPENING BUDGET (excluding grand opening expenses)

Revised: May 8,2007

THIS REPORT IS BASED ON PROJECTIONS, ESTIMATES, ASSUMPTIONS AND INFORMATION FROM SUPPLEMENTAL RESEARCH. CHANGES IN THE MARKET, ITS ENVIRONMENT AND THE NATIONAL MARKETPLACE, ALONG ALONG WITH ASSUMPTIONS THAT DO NOT MATERIALIZE COULD DICTATE VARIATIONS IN THE ESTIMATED RESULTS. THEREFORE, ACTUAL RESULTS ACHIEVED MAY VARY FROM THE ESTIMATES.
SMG Proprietary and Confidential O 2007

-

SMG NEW SEDGWICK COUNTY ARENA PRE-OPENING BUDGET FOR PERIOD PRIOR TO FACILITY OPENING-(MAY I, 2007- SEPT 30,2009)

(
ADVERTISING, MARKETING & PR PERSONNEL LEGAL FEES TELEPHONE OFFICE SUPPLIES COMPUTER EXPENSE TRAVEL & ENT.1 MTGS. & CONV. LICENSES & FEES RELOCATION EXPENSES POSTAGE EXPENSE CUSTOMER SERVICE TRAINING INSURANCE (PROFESSIONAL LIABILITY) PRINTING & STATIONERY BUILDING OPS AND PATRON SERVICES SUPPLIES EQUIPMENT RENTAL DUES & SUBSCRIPTIONS CORPORATE TRAVEL FOOD & BEVERAGE START-UP COSTS TOTAL EXPENSES (before pre-opening management fees)

I

PREOPENING TOTAL $30,000

212712007 Budget 30,000

1
Change 0

SMG NEW SEDGWICK COUNTY ARENA PREOPENING BUDGET MONTHLY STAFFING COSTS FOR PERIOD PRIOR TO FACILITY OPENING-(MAY 1.2007- SEPT 30.2009)

#OF MONTHSSAIARY EXECUTIVG Gonarsl Manager Recaptmnirt Adrnln Assistant 18 125.WO 11 21.000 3 43.000

1 ANNUAL May47
39

Jun47 -28

Jul-07 Aug47 -27 -26

Sep-07 O d 4 7 -25 -24

Nov47 -23

Des47 -22

Jan48 -21

Feb48 -20

Mar48 -19

Apr48 -18 10.417

May48 -17 10.417

NUMBER OF MONTHS PRIOR TO FACILITY OPENING Jun-08 Jul-08 Aug48 Sep48 Oct-08 Nov48 -16 -15 -14 -13 -12 -11 10.417 10.417 10.417 10.417 10.417

Dec48 -10 10.417 1.750

Jan49 -9 10.417 1.750

Feb.09 -8 10.417 1.750

Mar48 -7 10.417 1.750

Apr49

d
10.417 1.750

May49 5 10.417 1.750

Jun-09

Jul49

Aug49
-2

4
10.417 1,750

J
10.417 1.750 3.583

scp49 -1 10.417 1.750 3,583

Total 135.417 19.250 10.750

-

-

-

-

. .

-

. .

. -

-

. -

. . -

. . .

.

.

.

-

-

.

.

-

10.417 1.750

-

10,417 1.750 3.583

Accounl~ng Clerk SALES h MARKETING

Secunly Guard #2 Securny Guard tU

Enginaartng Manager Bu~ldtng Englnecr a1 Budding Engineer #2 Sktlled Trades Worker 41

EXHIBIT "F" DESCRIPTION OF THE FACILITY The Existing Faciiitv Description
A diagram of the Existing Facility is attached hereto.
The New Facility

The New Facility will consist of the following:
A.

B.
C. D. E.

Seating capacity of 15,000 for basketball and 17,000 for concerts. 20 Executive Suites, with 12 seats in each. 2 Party Suites, with seating for at least 20. 40 Loge Boxes, with 4 and 8 seats each. 300 Club Seats with VIP Club Lounge.

Within thirty (30) days prior to the commencement of the Management Term for the New Facility, the County shall provide SMG with a diagram of the New Facility in order for SMG to understand the physical boundaries of its management duties in respect of such facility.

EXHIBIT "G" TIME LINE OF CONSULTING SERVICES
Attached hereto is SMG's June 4,2007 time line of the Consulting Services.

I

General Data

Timing Data

Human Resources

EXHIBIT "H" MAJOR ASSUMPTIONS FROM SMG'S PRO FORMA OPERATING BUDGET
The following is a list of those major assumptions from SMG's pro forma operating budget that underlie the compensation and Net Operating Loss funding obligations of SMG under Section 4.3 hereof: 1. Upon commencement of the Management Term for the New Facility, there will be at least one professional hockey team as a long term tenant of such building. It is understood that SMG will be solely responsible for negotiating the terms of such tenant agreement with the hockey team, and such negotiated agreement will be subject to the joint approval rights of SMG and the County as provided in this Agreement. Although there will be no revenue generating parking spaces available to the operations of the New Facility, there will be some parking spaces available on the premises of the New Facility for the Luxury Suites and Loge Box patrons. The location of the two (2) Party Suites within the building will be such that they can be rented for end of arena floor concerts (i.e., not behind the stage where they cannot be rented). Property and hazard insurance covering the New Facility and business interruption and extra expenses insurance will not be an Operating Expense. Expenses for traffic control outside of the New Facility will not be an Operating Expense. The annual net revenues to the New Facility from the sale of Luxury Suites, Club Seats and Loge Boxes and from the sale of advertising and sponsorships will in the aggregate be at least $2,000,000, as long as Superlative's agreement is effective with respect to the sales of such items. Based upon the anticipated square footage of the New Facility and asst?mptions on the utility rates and usage from projected event activity, the annual cost of electricity, natural gas and water and sewer services for the New Facility is anticipated to be $925,000; however, after the date hereof and not less than one year prior to the opening of the New Facility, the parties will review the design of the building and its major systems and then current utility rates applicable to the building and may mutually decide in writing to modify such number based upon such additional information.

2.

3.

4. 5.

6.

7.

TABLE OF CONTENTS

.................................................................................................................... 1 2. ENGAGEMENT OF SMG; SCOPE OF SERVICES....................................................... 5 .................................................................................................................5 2.1 ENGAGEMENT OF STANDARD CARE OF ...........................................6 2.2 SCOPE SERVICESGENERALLY: ...................................................................................................6 2.3 SPECIFIC SERVICES 2.4 ACCESS THE FACILITY TO ........................................................................................... 9 2.5 CONSULTING SERVICES ................................................................................................9 CONFIDENTIALITY/NONDISCLOSURE ..........................................................................10 2.6 3. TERM AND RENEWAL...................................................................................................11 3.1 TRANSITION PERIOD ..................................................................................................11 ..............................................................1 1 MANAGEMENT AND RENEWAL TERM TERM 3.2 4. SMG'S COMPENSATION................................................................................................ 12 ..................................................................................................12 4.1 CONSULTING PERIOD ..................................................... 12 4.2 FEES WITHRESPECT THE EXISTING TO FACILITY .............................................................13 4.3 FEESWITHRESPECT THE NEWFACILITY TO 5. FUNDING; BUDGET; BANK ACCOUNTS................................................................ 15 FUNDS .......................................................................................................15 OPERATING NON.FUNDING ..............................................................................................................15 ......................................................................................................15 ANNUAL BUDGET BUDGET MODIFICATIONS INITIATED BY SMG...........................................................16 ...............................................16 BUDGET MODIFICATIONS INITIATED BY THE COUNTY .............................................................................1 7 RECEIPTS DISBURSEMENTS AND TICKET SALES REVENUES ........................................................................................ 17 ......................................................18 CAPITAL IMPROVEMENTS; EQUIPMENT CAPITAL ................................................................................. LIMITATION SMG LIABILITY OF 18 FOR REPAIRS ..............................................................................19 FUNDS EMERGENCY 19 6. RECORDS. AUDITS AND REPORTS........................................................................... AND . RECORDS AUDITS...................................................................................... .......19 6.1 20 6.2 ANNUAL ............................................................................................................. PLAN REPORTS .................................................................................................. 21 6.3 MONTHLY 21 7. EMPLOYEES................................................................................................................... 7.1 SMG EMPLOYEES ........................................................................................................ 21 ................................................................................................... 22 7.2 COUNTY EMPLOYEES ...................................................... 22 7.3 N SOLICITATION EMPLOYMENT COUNTY O OR BY
1 DEFINITIONS .

8

.

INDEMNIFICATION AND INSURANCE

.....................................................................23

.

9

. .

OWNERSHIP OF ASSETS

............................................................................................ 26

.................................................................................... 27 .............................................................................................................. 27 10.1 ASSIGNMENT 10.2 SMG TRANSACTIONS AFFILIATES WITH .................................................................... 27 1 . LAWS AND PERMITS.................................................................................................. 1 27 LICENSES. TAXES LIENS AND .................................................................. 27 11.1 PERMITS. ...............................................................................28 11.2 GOVERNMENTAL COMPLIANCE ..................................................................................28 11.3 DISCRIMINATION PROHIBITED 12. TERMINATION.............................................................................................................30
10

ASSIGNMENT; AFFILIATES

13.

....................................................................................................... 32 AND BUDGET LAWS ..................................................................................32 13.1 CASH BASIS 13.2 No PARTNERSHIP JOINT VENTURE OR ......................................................................32 .................................................................................................32 13.3 ENTIRE AGREEMENT .......................................................................................3 2 13.4 WRITTEN AMENDMENTS .......................................................................................................3 2 13.5 FORCE MAJEURE AND BENEFICIARIES 33 ....... 13.6 BINDING UPON SUCCESSORS ASSIGNS: NO THIRD-PARTY 13.7 NOTICES ..................................................................................................................34 13.8 SECTION AND TERMS ........................................................... 35 HEADINGS DEFINED 13.9 COUNTERPARTS ............................................................................................................35 ....................................................................................................... 35 13.10 SEVERABILITY NON.WAIVER ......................................................................................................... 35 13.11 .............................................................................................................. 35 13.12 CONSENT 13.13 AND ....................................................35 CERTAIN REPRESENTATIONS WARRANTIES 13.14 GOVERNING .................................................................................................. LAW 36 ..................................................................................................36 13.15 FORUM SELECTION 13.16 ........................................................................................... 36 No TENANCY CREATED THEONLY RELATIONSHIP CREATED BY THIS AGREEMENTTHAT OF INDEPENDENT IS CONTRACTOR. THIS AGREEMENT IS NOT INTENDED TO CREATE A LANDLORD-TENANT RELATIONSHIP, AND NO SUCH RELATIONSHIP SHALL BE INFERRED FROM ANY PROVISION HEREOF................................................................................................................................... 36
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